Milpitas City Council
March 18, 2025

NSO

1. Award No. 2. Modification No. 3. Effective Date 4. CFDA No.

DE-SE0000736 10/01/2024 81.041

ASSISTANCE AGREEMENT
455 E CALAVERAS BLVD

7. Period of Performance
10/01/2024
through
09/30/2026

6. Sponsoring Office
State and Community Energy Programs
U.S. Department of Energy
1000 Independence Ave, SW
washington DC 20585MILPITAS CA 950355411
Attn: Fenny Lei

CITY OF MILPITAS

5. Awarded To
Other
Cooperative Agreement
Grant Energy Act of 2020 24SE000478

10. Purchase Request or Funding Document No.9. Authority8. Type of Agreement X

11. Remittance Address 12. Total Amount 13. Funds Obligated

CITY OF MILPITAS
Attn: CITY OF MILPITAS
455 EAST CALAVERAS BLVD.

MILPITAS CA 950355411
Govt. Share: $3,000,000.00
Cost Share : $0.00
Total : $3,000,000.00
This action: $3,000,000.00
Total : $3,000,000.00ACCOUNTING/GRANTS
Jay Nathwani
Golden CO 80401
15013 Denver West Parkway
Golden Field Office
U.S. Department of Energy
Golden Field Office
Phone: 202-510-0854

14. Principal Investigator 15. Program Manager 16. Administrator P.O. Box 6017
See Attachment 2OR for Golden
U.S. Department of Energy
Oak Ridge Financial Service Center
Oak Ridge TN [email protected]
by call/email 855-384-7377 or
Any questions, please contact
https://vipers.doe.gov
VIPERS

19. Submit Reports To18. Paying Office17. Submit Payment Requests To

20. Accounting and Appropriation Data
07950-2023-31-200835-41020-1800038-0000000-0000000-0610607

21. Research Title and/or Description of Project

MILPITAS CARBON NEUTRAL HOMES RETROFIT PROGRAM
For the Recipient For the United States of America

22. Signature of Person Authorized to Sign 25. Signature of Grants/Agreements Officer

23. Name and Title 24. Date Signed 26. Name of Officer 27. Date Signed Geoffrey I. Walker 09/26/2024
Signature on File
NSO

NSO
CONTINUATION SHEET REFERENCE NO. OF DOCUMENT BEING CONTINUED

NAME OF OFFEROR OR CONTRACTOR
AMOUNTUNIT PRICEUNITQUANTITYSUPPLIES/SERVICESITEM NO.

PAGE OF
(A) (B) (C) (E) (F)
DE-SE0000736 2 3

CITY OF MILPITAS
(D)
UEI: EZ77RK2NWKC8
In addition to this Assistance Agreement, this
award consists of the items listed on the Cover
Page of the Special Terms and Conditions.

The Project Period for this award is 10/01/2024
through 09/30/2026, consisting of the following
Budget Period:

Budget Period 1: 10/01/2024 to 09/30/2026
In Block 7 of the Assistance Agreement, the
Period of Performance reflects the beginning of
the Project Period through the end of the current
Budget Period.

Additional future DOE funding and additional
budget periods are not contemplated under this
award. Funding for all awards and future budget
periods is contingent upon the availability of
funds appropriated by Congress for the purpose of
this program and the availability of future-year
budget authority.

DOE Award Administrator: Charles D'Angelo
E-mail: charles.d'[email protected]
Phone: 240-562-1856
DOE Project Officer: Jay Nathwani
E-mail: [email protected]
Phone: 202-510-0854
Recipient Business Officer: Matt Cano
E-mail: [email protected]
Phone: 408-586-2603
Recipient Principal Investigator: Elaine Marshall
E-mail: [email protected]
Phone: 408-586-2603
"Electronic signature or signatures as used in
this document means a method of signing an
electronic message that--
(A) Identifies and authenticates a particular
person as the source of the electronic message;
(B) Indicates such person's approval of the
information contained in the electronic message;
and,
(C) Submission via FedConnect constitutes
electronically signed documents."
Continued ...

NSO

NSO
CONTINUATION SHEET REFERENCE NO. OF DOCUMENT BEING CONTINUED

NAME OF OFFEROR OR CONTRACTOR
AMOUNTUNIT PRICEUNITQUANTITYSUPPLIES/SERVICESITEM NO.

PAGE OF
(A) (B) (C) (E) (F)
DE-SE0000736 3 3

CITY OF MILPITAS
(D)
ASAP: NO: STD IMMEDIATE Extent Competed: NOT
COMPETED Davis-Bacon Act: NO PI: MARSHALL, ELAINE
Fund: 07950 Appr Year: 2023 Allottee: 31 Report
Entity: 200835 Object Class: 41020 Program:
1800038 Project: 0000000 WFO: 0000000 Local Use:
0610607
NSO

NSO
JULY 2004
NSO

Template Version 9/8/2023
Special Terms and Conditions
Award No. DE-SE0000736.0000 With City of Milpitas (CA)

Special Terms and Conditions

City of Milpitas, which is identified in Block 5 of the Assistance Agreement, and the State and Community Energy Program (“SCEP”), an office within the United States Department of Energy (“DOE”), enter into this Award, referenced above, to achieve the project objectives and the technical milestones and deliverables stated in the Attachments to this Award.

This Award consists of the following documents, including all terms and conditions therein:

Assistance Agreement
Special Terms and Conditions
Attachment 1 Statement of Project Objectives and
Milestone Summary Table
Attachment 2 Federal Assistance Reporting Checklist and Instructions
Attachment 3 Budget Information SF-424A
Attachment 4 Intellectual Property Provisions
Attachment 5 NEPA Determination

The following are incorporated into this Award by reference:
• DOE Assistance Regulations, 2 CFR Part 200 as amended by 2 CFR Part 910 at http://www.eCFR.gov.
• National Policy Requirements (November 12, 2020) at
http://www.nsf.gov/awards/managing/rtc.jsp.
• The Recipient’s application/proposal as approved by SCEP.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

2 Table of Contents
Subpart A. General Provisions ............................................................................................................................ 4 Term 1. Legal Authority and Effect ....................................................................................................................... 4 Term 2. Flow Down Requirement......................................................................................................................... 4 Term 3. Compliance with Federal, State, and Municipal Law ............................................................................. 4 Term 4. Inconsistency with Federal Law .............................................................................................................. 4 Term 5. Federal Stewardship ................................................................................................................................ 4 Term 6. Federal Involvement ................................................................................................................................ 4 Term 7. Foreign National Participation ................................................................................................................ 6 Term 8. Post-Award Due Diligence Reviews ........................................................................................................ 6 Term 9. NEPA Requirements ................................................................................................................................ 6 Term 10. Performance of Work in United States ................................................................................................... 7 Term 11. Notice Regarding the Purchase of American-Made Equipment and Products – Sense of Congress .... 8 Term 12. Reporting Requirements ......................................................................................................................... 8 Term 13. Lobbying ................................................................................................................................................... 8 Term 14. Publications ............................................................................................................................................. 8 Term 15. No-Cost Extension ................................................................................................................................... 9 Term 16. Property Standards .................................................................................................................................. 9 Term 17. Insurance Coverage ............................................................................................................................... 10 Term 18. Real Property ......................................................................................................................................... 10 Term 19. Supplies .................................................................................................................................................. 10 Term 20. Property Trust Relationship .................................................................................................................. 10 Term 21. Record Retention ................................................................................................................................... 10 Term 22. Audits ..................................................................................................................................................... 10 Term 23. Site Visits and Recipient Administrative Organizational Reviews ....................................................... 11 Subpart B. Financial Provisions.......................................................................................................................... 12 Term 24. Maximum Obligation ............................................................................................................................. 12 Term 25. Refund Obligation.................................................................................................................................. 12 Term 26. Allowable Costs ..................................................................................................................................... 12 Term 27. Use of Program Income ......................................................................................................................... 12 Term 28. Payment Procedures ............................................................................................................................. 12 Term 29. Budget Changes ..................................................................................................................................... 14 Subpart C. Miscellaneous Provisions ................................................................................................................ 15 Term 30. Environmental, Safety and Health Performance of Work at DOE Facilities ........................................ 15 Term 31. Insolvency, Bankruptcy or Receivership ............................................................................................... 15 Term 32. Reporting Subawards and Executive Compensation ............................................................................ 16 Term 33. System for Award Management and Universal Identifier Requirements ........................................... 20 Term 34. Nondisclosure and Confidentiality Agreements Assurances ............................................................... 21 Term 35. Subrecipient and Contractor Approvals................................................................................................ 22 Term 36. Subrecipient Change Notification ......................................................................................................... 23 Term 37. Conference Spending ............................................................................................................................. 24 Term 38. Recipient Integrity and Performance Matters ...................................................................................... 24 Term 39. Export Control ........................................................................................................................................ 26 Term 40. Current and Pending Support................................................................................................................ 26 Term 41. Interim Conflict of Interest Policy for Financial Assistance .................................................................. 29 Term 42. Organizational Conflict of Interest ........................................................................................................ 30 Term 43. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment ............ 30 Term 44. Participants and Other Collaborating Organizations ............................................................................ 31

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

3 Term 45. Human Subjects Research ..................................................................................................................... 32 Term 46. Fraud, Waste and Abuse ....................................................................................................................... 33 Term 47. Buy America Requirement for Infrastructure Projects ......................................................................... 33 Term 48. Prohibition related to Foreign Government-Sponsored Talent Recruitment Programs ..................... 38 Term 49. Affirmative Action and Pay Transparency Requirements .................................................................... 39 Term 50. Potentially Duplicative Funding Notice ................................................................................................ 39 Term 51. Transparency of Foreign Connections................................................................................................... 39 Term 52. Foreign Collaboration Considerations .................................................................................................. 41 Term 53. Impacted Indian Tribes .......................................................................................................................... 41

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

4 Subpart A. General Provisions

Term 1. Legal Authority and Effect
A DOE financial assistance award is valid only if it is in writing and is signed, either in writing or electronically, by a DOE Contracting Officer.

The Recipient may accept or reject the Award. A request to draw down DOE funds or acknowledgement of award documents by the Recipient’s authorized representative through electronic systems used by DOE, specifically FedConnect, constitutes the Recipient's acceptance of the terms and conditions of this Award. Acknowledgement via FedConnect by the Recipient’s authorized representative constitutes the Recipient's electronic signature.

Term 2. Flow Down Requirement
The Recipient agrees to apply the terms and conditions of this Award, including the Intellectual Property Provisions, to all subrecipients (and contractors, as appropriate). See, 2 CFR 200.101(b)(2), 2 CFR 200.327, and 2 CFR 200.332.

Term 3. Compliance with Federal, State, and Municipal Law The Recipient is required to comply with applicable federal, state, and local laws and regulations for all work performed under this Award. The Recipient is required to obtain all necessary federal, state, and local permits, authorizations, and approvals for all work performed under this Award.

Term 4. Inconsistency with Federal Law
Any apparent inconsistency between federal statutes and regulations and the terms and conditions contained in this Award must be referred to the DOE Award Administrator for guidance.

Term 5. Federal Stewardship
SCEP will exercise normal federal stewardship in overseeing the project activities performed under this Award. Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and financial reports; providing technical assistance and/or temporary intervention in unusual circumstances to address deficiencies that develop during the project; assuring compliance with terms and conditions; and reviewing technical performance after project completion to ensure that the project objectives have been accomplished.

Term 6. Federal Involvement

A. Review Meetings
The Recipient, including but not limited to, the principal investigator (or, if applicable, co- principal investigators), is required to participate in periodic review meetings with SCEP. Review meetings enable SCEP to assess the work performed under this Award and determine whether

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

5 the Recipient has timely achieved the technical milestones and deliverables stated in Attachment 1 to this Award.

SCEP shall determine the frequency of review meetings and select the day, time, and location of each review meeting and shall do so in a reasonable and good faith manner. SCEP will provide the Recipient with reasonable notice of the review meetings.

For each review meeting, the Recipient is required to provide a comprehensive overview of the project, including:
• The Recipient’s technical progress compared to the Milestone Summary Table stated in Attachment 1 to this Award.
• The Recipient’s actual expenditures compared to the approved budget in Attachment 3 to this Award.
• Other subject matter specified by the DOE Technology Manager/Project Officer.

B. Project Meetings
The Recipient is required to notify SCEP in advance of scheduled tests and internal project meetings that would entail discussion of topics that could result in major changes to the baseline project technical scope/approach, cost, or schedule. Upon request by SCEP, the Recipient is required to provide SCEP with reasonable access (by telephone, webinar, or otherwise) to the tests and project meetings. The Recipient is not expected to delay any work under this Award for the purpose of government insight.

C. Site Visits
SCEP's authorized representatives have the right to make site visits at reasonable times to review project accomplishments and management control systems and to provide technical assistance, if required. The Recipient must provide, and must require subrecipients to provide, reasonable access to facilities, office space, resources, and assistance for the safety and convenience of the government representatives in the performance of their duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or delay the work.

D. Technical Milestones and Deliverables
Attachment 1 to this Award establishes technical milestones and deliverables. If the Recipient fails to achieve two or more technical milestones and deliverables, SCEP may renegotiate the Statement of Project Objectives and/or Milestone Summary Table in Attachment 1 to this Award. In the alternative, SCEP may deem the Recipient’s failure to achieve these technical milestones and deliverables to be material noncompliance with the terms and conditions of this Award and take action to suspend or terminate the Award.

E. SCEP Access
The Recipient must provide any information, documents, site access, or other assistance requested by SCEP for the purpose of its federal stewardship or substantial involvement.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

6 Term 7. Foreign National Participation
A “foreign national” is defined as any person who is not a U.S. citizen by birth or naturalization.

If the Recipient (including any of its subrecipients and contractors) anticipates involving foreign nationals in the performance of the Award, the Recipient must, upon DOE’s request, provide DOE with specific information about each foreign national to ensure compliance with the requirements for participation and access approval. The volume and type of information required may depend on various factors associated with the Award. The DOE Contracting Officer will notify the Recipient if this information is required.

DOE may elect to deny a foreign national’s participation in the Award. Likewise, DOE may elect to deny a foreign national’s access to a DOE sites, information, technologies, equipment, programs, or personnel. DOE’s determination to deny participation or access is not appealable.

Term 8. Post-Award Due Diligence Reviews
During the period of performance of the Award, DOE may conduct ongoing due diligence reviews, through Government resources, to identify potential risks of undue foreign influence.

In the event a risk is identified, DOE may require risk mitigation measures, including but not limited to, requiring an individual or entity not participate in the Award.

Term 9. NEPA Requirements
DOE must comply with the National Environmental Policy Act (NEPA) prior to authorizing the use of federal funds. Based on all information provided by the Recipient, SCEP has made a NEPA determination by issuing a categorical exclusion (CX) for all activities listed in the Statement of Project Objectives (SOPO) approved by the Contracting Officer and the DOE NEPA Determination. The Recipient is thereby authorized to use federal funds for the defined project activities, except where such activity is subject to a restriction set forth elsewhere in this Award.

This authorization is specific to the project activities and locations as described in the SOPO approved by the Contracting Officer and the DOE NEPA Determination.

If the Recipient later intends to add to or modify the activities or locations as described in the approved SOPO and the DOE NEPA Determination, those new activities/locations or modified activities/locations are subject to additional NEPA review and are not authorized for federal funding until the Contracting Officer provides written authorization on those additions or modifications. Should the Recipient elect to undertake activities or change locations prior to written authorization from the Contracting Officer, the Recipient does so at risk of not receiving federal funding for those activities, and such costs may not be recognized as allowable cost share.

DOE must consider the effects on historic properties, pursuant to Section 106 of the National Historic Preservation Act (NHPA). Section 106 applies to historic properties that are listed in or eligible for listing in the National Register of Historic Places. DOE and recipients selected for an

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

7 award must consider the effects of project activities on historic properties, pursuant to Section 106 of the NHPA

Awardees in States or Territories with a DOE-executed Programmatic Agreement (PA) must adhere to all the Stipulations outlined in the PA, including reporting requirements. Executed PAs are available on this website: https://www.energy.gov/scep/historic-preservation- executed-programmatic-agreements. So long as the proposed project/undertaking is within a State or Territory that has executed a Programmatic Agreement, the terms of the Programmatic Agreement will apply to all SCEP Recipients and subrecipients within the applicable state, and their activities. Applicants that do NOT have a PA which includes Guam and tribal governments, must follow the added restrictions in a NEPA determination to ensure Section 106 compliance.

Term 10. Performance of Work in United States

A. Requirement
All work performed under this Award must be performed in the United States unless the Contracting Officer provides a waiver. This requirement does not apply to the purchase of supplies and equipment; however, the Recipient should make every effort to purchase supplies and equipment within the United States. The Recipient must flow down this requirement to its subrecipients.

B. Failure to Comply
If the Recipient fails to comply with the Performance of Work in the United States requirement, the Contracting Officer may deny reimbursement for the work conducted outside the United States and such costs may not be recognized as allowable Recipient cost share of if the work is performed by the Recipient, subrecipients, contractors or other project partners.

C. Waiver for Work Outside the U.S.

All work performed under this Award must be performed in the United States. However, the Contracting Officer may approve the Recipient to perform a portion of the work outside the United States under limited circumstances. The Recipient must obtain a waiver from the Contracting Officer prior to conducting any work outside the U.S. To request a waiver, the Recipient must submit a written waiver request to the Contracting Officer, which includes the information as required in the FOA that the Award was selected under.

For the rationale, the Recipient must demonstrate to the satisfaction of the Contracting Officer that the performance of work outside the United States would further the purposes of the FOA that the Award was selected under and is in the economic interests of the United States. The Contracting Officer may require additional information before considering such request.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

8 Term 11. Notice Regarding the Purchase of American-Made Equipment and Products – Sense of Congress
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this Award should be American-made.

Term 12. Reporting Requirements

A. Requirements
The reporting requirements for this Award are identified on the Federal Assistance Reporting Checklist, attached to this Award. Failure to comply with these reporting requirements is considered a material noncompliance with the terms of the Award.

Noncompliance may result in withholding of future payments, suspension, or termination of the current award, and withholding of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or other financial assistance awards, may also result in a debarment action to preclude future awards by federal agencies.

B. Dissemination of Scientific and Technical Information Scientific and Technical Information (STI) generated under this Award will be submitted to DOE via the Office of Scientific and Technical Information’s Energy Link (E-Link) system. STI submitted under this Award will be disseminated via DOE’s OSTI.gov website subject to approved access limitations. Citations for journal articles produced under the Award will appear on the DOE PAGES website.

C. Restrictions
Scientific and Technical Information submitted to E-Link must not contain any Protected Personal Identifiable Information (PII), limited rights data (proprietary data), classified information, information subject to export control classification, or other information not subject to release.

Term 13. Lobbying
By accepting funds under this Award, the Recipient agrees that none of the funds obligated on the Award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. § 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.

Term 14. Publications
The Recipient is required to include the following acknowledgement in publications arising out of, or relating to, work performed under this Award, whether copyrighted or not:

• Acknowledgment: “This material is based upon work supported by the U.S. Department of Energy’s State and Community Energy Program (SCEP) Award Number DE-

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

9 SE0000736.”

• Full Legal Disclaimer: “This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States Government or any agency thereof.

The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof.”

Abridged Legal Disclaimer: “The views expressed herein do not necessarily represent the views of the U.S. Department of Energy or the United States Government.”

Recipients should make every effort to include the full Legal Disclaimer. However, in the event that recipients are constrained by formatting and/or page limitations set by the publisher, the abridged Legal Disclaimer is an acceptable alternative.

The Award may be subject to a Data Management Plan as part of the Intellectual Property clause set that explains how data generated in the course of the work performed under this Award will be shared or preserved or, when justified, explains why data sharing or preservation is not possible or scientifically appropriate.

Term 15. No-Cost Extension
As provided in 2 CFR 200.308, the Recipient must provide the Contracting Officer with notice in advance if it intends to utilize a one-time, no-cost extension of this Award. The notification must include the supporting reasons and the revised period of performance. The Recipient must submit this notification in writing to the Contracting Officer and DOE Technology Manager/Project Officer at least 30 days before the end of the current budget period.

Any no-cost extension will not alter the project scope, milestones, deliverables, or budget of this Award.

Term 16. Property Standards
The complete text of the Property Standards can be found at 2 CFR 200.310 through 200.316.

Also see 2 CFR 910.360 for additional requirements for real property and equipment for for- profit recipients.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

10 Term 17. Insurance Coverage
See 2 CFR 200.310 for insurance requirements for real property and equipment acquired or improved with federal funds. Also see 2 CFR 910.360(d) for additional requirements for real property and equipment for for-profit recipients.

Term 18. Real Property
Subject to the conditions set forth in 2 CFR 200.311, title to real property acquired or improved under a federal award will conditionally vest upon acquisition in the non-federal entity. The non-federal entity cannot encumber this property and must follow the requirements of 2 CFR 200.311 before disposing of the property.

Except as otherwise provided by federal statutes or by the federal awarding agency, real property will be used for the originally authorized purpose as long as needed for that purpose.

When real property is no longer needed for the originally authorized purpose, the non-federal entity must obtain disposition instructions from DOE or pass-through entity.

See 2 CFR 200.311 for additional requirements pertaining to real property acquired or improved under a federal award. Also see 2 CFR 910.360 for additional requirements for real property for for-profit recipients.

Term 19. Supplies
See 2 CFR 200.314 for requirements pertaining to supplies acquired under a federal award. See also 2 CFR 200.453 Materials and supplies costs, including costs of computing devices.

Term 20. Property Trust Relationship
Real property, equipment, and intangible property, that are acquired or improved with a federal award must be held in trust by the non-federal entity as trustee for the beneficiaries of the project or program under which the property was acquired or improved. See 2 CFR 200.316 for additional requirements pertaining to real property, equipment, and intangible property acquired or improved under a federal award.

Term 21. Record Retention
Consistent with 2 CFR 200.334 through 200.338, the Recipient is required to retain records relating to this Award.

Term 22. Audits

A. Government-Initiated Audits
The Recipient must provide any information, documents, site access, or other assistance requested by SCEP, DOE or federal auditing agencies (e.g., DOE Inspector General, Government Accountability Office) for the purpose of audits and investigations. Such assistance may include, but is not limited to, reasonable access to the Recipient’s records relating to this Award.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

11 Consistent with 2 CFR part 200 as amended by 2 CFR part 910, DOE may audit or review the Recipient’s financial records or administrative records relating to this Award at any time.

Audits or reviews may be performed to determine if the Recipient has an adequate financial management system to estimate, bill, and record federal government expenditures in accordance with the criteria in 2 CFR 200.302, Generally Accepted Accounting Principles (GAAP), Generally Accepted Government Accounting Standards (GAGAS), and Standard Form 1408. Government-initiated audits are generally paid for by DOE.

DOE may conduct a final audit at the end of the project period (or the termination of the Award, if applicable). Upon completion of the audit, the Recipient is required to refund to DOE any payments for costs that were determined to be unallowable. If the audit has not been performed or completed prior to the closeout of the award, DOE retains the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.

DOE will provide reasonable advance notice of audits and will minimize interference with ongoing work, to the maximum extent practicable.

B. Annual Independent Audits (Single Audit or Compliance Audit) The Recipient must comply with the annual independent audit requirements in 2 CFR 200.500 through .521 for institutions of higher education, nonprofit organizations, and state and local governments (Single audit), and 2 CFR 910.500 through .521 for for-profit entities (Compliance audit).

The annual independent audits are separate from Government-initiated audits discussed in part A. of this Term and must be paid for by the Recipient. To minimize expense, the Recipient may have a Compliance audit in conjunction with its annual audit of financial statements. The financial statement audit is not a substitute for the Compliance audit. If the audit (Single audit or Compliance audit, depending on Recipient entity type) has not been performed or completed prior to the closeout of the award, DOE may impose one or more of the actions outlined in 2 CFR 200.339, Remedies for Noncompliance.

Term 23. Site Visits and Recipient Administrative Organizational Reviews SCEP’s authorized representatives have the right to make site visits and conduct Recipient Administrative Organizational Reviews to review the project and management control systems and to provide technical assistance, as appropriate. The Recipient must provide, and must require its subrecipients and contractors to provide, reasonable access to facilities, office space, resources, and assistance for the safety and convenience of the government representatives in the performance of their duties. SCEP will make reasonable efforts to ensure these site visits do not interfere with or unduly delay project work.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

12 Subpart B. Financial Provisions

Term 24. Maximum Obligation
The maximum obligation of DOE for this Award is the total “Funds Obligated” stated in Block 13 of the Assistance Agreement to this Award.

Term 25. Refund Obligation
The Recipient must refund any excess payments received from SCEP, including any costs determined unallowable by the Contracting Officer. At the end of the project period (or the termination of the Award, if applicable), the Recipient must refund to SCEP the difference between (1) the total payments received from SCEP, and (2) the federal share of the costs incurred. Refund obligations under this Term do not supersede the annual reconciliation or true up process if specified under the Indirect Cost Term.

Term 26. Allowable Costs
SCEP determines the allowability of costs in accordance with 2 CFR Part 200 as amended by 2 CFR Part 910. All project costs must be allowable, allocable, and reasonable. The Recipient must document and maintain records of all project costs, including, but not limited to, the costs paid by federal funds, costs claimed by its subrecipients and project costs that the Recipient claims as cost sharing, including in-kind contributions. The Recipient is responsible for maintaining records adequate to demonstrate that costs claimed have been incurred, are reasonable, allowable, and allocable, and comply with the appropriate cost principles. Upon request, the Recipient is required to provide such records to SCEP. Such records are subject to audit. Failure to provide SCEP adequate supporting documentation may result in a determination by the Contracting Officer that those costs are unallowable.

The Recipient is required to obtain the prior written approval of the Contracting Officer for any foreign travel costs.

Term 27. Use of Program Income
If the Recipient earns program income during the project period as a result of this Award, the Recipient must add the program income to the funds committed to the Award and used to further eligible project objectives.

Term 28. Payment Procedures

A. Method of Payment
Payment will be made by reimbursement through ACH.

B. Requesting Reimbursement
Requests for reimbursements must be made electronically through Department of Energy’s Oak Ridge Financial Service Center (ORFSC) VIPERS. To access and use

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

13 VIPERS, the Recipient must enroll at https://vipers.doe.gov. Detailed instructions on how to enroll are provided on the web site.

C. Timing of Submittals
Submittal of the SF-270 or SF-271 should coincide with the Recipient’s normal billing pattern, but not more frequently than every two weeks. Requests for reimbursement must be limited to the amount of disbursements made during the billing period for the federal share of direct project costs and the proportionate share of any allowable indirect costs incurred during that billing period.

D. Adjusting Payment Requests for Available Cash
The Recipient must disburse any funds that are available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting additional cash payments from SCEP.

E. Payments
The SCEP approving official will approve the invoice as soon as practical, but not later than 30 days after the Recipient’s request is received, unless the billing is improper. Upon receipt of an invoice payment authorization from the SCEP approving official, the ORFSC will disburse payment to the Recipient. The Recipient may check the status of payments at the VIPERS web site. All payments are made by electronic funds transfer to the bank account specified on the Bank Information Form that the Recipient filed with the U.S. Department of Treasury.

F. Supporting Documents for Agency Approval of Payments For non-construction awards, the Recipient must submit a Standard Form SF-270, “Request for Advance or Reimbursement,” at https://vipers.doe.gov and attach a file containing appropriate supporting documentation.

The following additional items are required:
• Summary cost data, for the billing period and cumulative cost data, showing all categories listed in the SF-424A and identifying federal, non-federal, and total amounts.
• If there are unauthorized phases and/or tasks for the current budget period in the NEPA Requirements term in these Special Terms and Conditions, a statement affirming that no invoiced costs are related to tasks or activities prohibited by the NEPA Requirements term.
• Applicable to for-profit recipients and subrecipients UCC filing proof for all equipment acquired with project funds (i.e., federal share or Recipient share) and equipment offered as cost share.

The SCEP payment authorizing official may request additional information from the Recipient to support the payment requests prior to release of funds, as deemed

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14 necessary. The Recipient is required to comply with these requests. Supporting documents include invoices, copies of contracts, contractor quotes, and other expenditure explanations that justify the reimbursement requests.

G. Unauthorized Drawdown of Federal Funds
For each budget period, the Recipient may not spend more than the federal share authorized to that particular budget period, without specific written approval from the Contracting Officer. The Recipient must immediately refund SCEP any amounts spent or drawn down in excess of the authorized amount for a budget period. The Recipient and subrecipients shall promptly, but at least quarterly, remit to DOE interest earned on advances drawn in excess of disbursement needs and shall comply with the procedure for remitting interest earned to the federal government per 2 CFR 200.305, as applicable.

Term 29. Budget Changes

A. Budget Changes Generally
The Contracting Officer has reviewed and approved the SF-424A in Attachment 3 to this Award.

Any increase in the total project cost, whether DOE share or Cost Share, which is stated as “Total” in Block 12 to the Assistance Agreement of this Award, must be approved in advance and in writing by the Contracting Officer.

Any change that alters the project scope, milestones or deliverables requires prior written approval of the Contracting Officer. SCEP may deny reimbursement for any failure to comply with the requirements in this term.

B. Transfers of Funds Among Direct Cost Categories
The Recipient is required to obtain the prior written approval of the Contracting Officer for any transfer of funds among direct cost categories where the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total project cost, which is stated as “Total” in Block 12 to the Assistance Agreement of this Award.

The Recipient is required to notify the DOE Technology Manager/Project Officer of any transfer of funds among direct cost categories where the cumulative amount of such transfers is equal to or below 10 percent of the total project cost, which is stated as “Total” in Block 12 to the Assistance Agreement of this Award.

C. Transfer of Funds Between Direct and Indirect Cost Categories The Recipient is required to obtain the prior written approval of the Contracting Officer for any transfer of funds between direct and indirect cost categories. If the Recipient’s actual allowable indirect costs are less than those budgeted in

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15 Attachment 3 to this Award, the Recipient may use the difference to pay additional allowable direct costs during the project period so long as the total difference is less than 10% of total project costs and the difference is reflected in actual requests for reimbursement to DOE.

Subpart C. Miscellaneous Provisions

Term 30. Environmental, Safety and Health Performance of Work at DOE Facilities
With respect to the performance of any portion of the work under this Award which is performed at a DOE-owned or controlled site, the Recipient agrees to comply with all State and Federal Environmental, Safety and Health (ES&H) regulations and with all other ES&H requirements of the operator of such site.

Prior to the performance on any work at a DOE-owned or controlled site, the Recipient shall contact the site facility manager for information on DOE and site-specific ES&H requirements.

The Recipient is required apply this provision to its subrecipients and contractors.

Term 31. Insolvency, Bankruptcy or Receivership
The Recipient shall immediately, but no later than five days, notify SCEP of the occurrence of any of the following events: (1) the Recipient or the Recipient’s parent’s filing of a voluntary case seeking liquidation or reorganization under the Bankruptcy Act; (2) the Recipient’s consent to the institution of an involuntary case under the Bankruptcy Act against the Recipient or the Recipient’s parent; (3) the filing of any similar proceeding for or against the Recipient or the Recipient’s parent, or the Recipient’s consent to the dissolution, winding-up or readjustment of its debts, appointment of a receiver, conservator, trustee, or other officer with similar powers over the Recipient, under any other applicable state or federal law; or (4) the Recipient’s insolvency due to its inability to pay debts generally as they become due.

Such notification shall be in writing and shall: (1) specifically set out the details of the occurrence of an event referenced in paragraph A; (2) provide the facts surrounding that event; and (3) provide the impact such event will have on the project being funded by this Award.

Upon the occurrence of any of the four events described in paragraph A. of this term, SCEP reserves the right to conduct a review of the Recipient’s Award to determine the Recipient’s compliance with the required elements of the Award (including such items as cost share, progress towards technical project objectives, and submission of required reports). If the SCEP review determines that there are significant deficiencies or concerns with the Recipient’s performance under the Award, SCEP reserves the right to impose additional requirements, as needed, including (1) change of payment method; or (2) institute payment controls.

Failure of the Recipient to comply with this term may be considered a material noncompliance of this Award by the Contracting Officer.

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16 Term 32. Reporting Subawards and Executive Compensation

A. Reporting of first-tier subawards

i. Applicability. Unless the Recipient is exempt as provided in paragraph D. of this award term, the Recipient must report each action that equals or exceeds $30,000 in federal funds for a subaward to an entity (see definitions in paragraph E. of this award term).

ii. Where and when to report.

1. The Recipient must report each obligating action described in paragraph A.i. of this award term to https://www.fsrs.gov.

2. For subaward information, report no later than the end of the month following the month in which the obligation was made. (For example, if the obligation was made on November 7 the obligation must be reported no later than December 31.)

iii. What to report. The Recipient must report the information about each obligating action that the submission instructions posted at https://www.fsrs.gov specify.

B. Reporting Total Compensation of Recipient Executives

i. Applicability and what to report. The Recipient must report total compensation for each of its five most highly compensated executives for the preceding completed fiscal year, if:

1. The total federal funding authorized to date under this Award equals or exceeds $30,000 as defined in 2 CFR 170.320;

2. In the preceding fiscal year, the Recipient received;

a. 80 percent or more of the Recipient’s annual gross revenues from federal procurement contracts (and subcontracts) and federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

b. $25,000,000 or more in annual gross revenues from federal procurement contracts (and subcontracts) and federal
financial assistance subject to the Transparency Act, as

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17 defined at 2 CFR 170.320 (and subawards).

3. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm).

ii. Where and when to report. The Recipient must report executive total compensation described in paragraph B.i. of this award term:

1. As part of the Recipient’s registration profile at https://www.sam.gov.

2. By the end of the month following the month in which this award is made, and annually thereafter.

C. Reporting of Total Compensation of Subrecipient Executives

i. Applicability and what to report. Unless the Recipient is exempt as provided in paragraph D. of this award term, for each first-tier subrecipient under this award, the Recipient shall report the names and total compensation of each of the subrecipient's five most highly compensated executives for the subrecipient's preceding completed fiscal year, if:

1. In the subrecipient's preceding fiscal year, the subrecipient received:

a. 80 percent or more of its annual gross revenues from federal procurement contracts (and subcontracts) and federal
financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

b. $25,000,000 or more in annual gross revenues from federal procurement contracts (and subcontracts), and federal
financial assistance subject to the Transparency Act (and subawards).

2. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total

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18 compensation filings at http://www.sec.gov/answers/execomp.htm).

ii. Where and when to report. The Recipient must report subrecipient executive total compensation described in paragraph C.i. of this award term:

1. To the recipient.

2. By the end of the month following the month during which the Recipient makes the subaward. For example, if a subaward is obligated on any date during the month of October of a given year (i.e., between October 1 and 31), the Recipient must report any required compensation information of the subrecipient by November 30 of that year.

D. Exemptions
If, in the previous tax year, the Recipient had gross income, from all sources, under $300,000, it is exempt from the requirements to report:

i. Subawards; and

ii. The total compensation of the five most highly compensated executives of any subrecipient.

E. Definitions
For purposes of this Award term:

i. Entity means all of the following, as defined in 2 CFR Part 25:

1. A Governmental organization, which is a State, local government, or Indian tribe.

2. A foreign public entity.

3. A domestic or foreign nonprofit organization.

4. A domestic or foreign for-profit organization.

5. A federal agency, but only as a subrecipient under an award or subaward to a non-federal entity.

ii. Executive means officers, managing partners, or any other employees in management positions.

iii. Subaward:

1. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which the Recipient received this award and that the recipient awards

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19 to an eligible subrecipient.

2. The term does not include the Recipient’s procurement of property and services needed to carry out the project or program (for further explanation, see 2 CFR 200.501 Audit requirements, (f) Subrecipients and Contractors and/or 2 CFR 910.501 Audit requirements, (f) Subrecipients and Contractors).

3. A subaward may be provided through any legal agreement, including an agreement that the Recipient or a subrecipient considers a contract.

iv. Subrecipient means an entity that:

1. Receives a subaward from the Recipient under this award; and

2. Is accountable to the Recipient for the use of the federal funds provided by the subaward.

v. Total compensation means the cash and noncash dollar value earned by the executive during the recipient's or subrecipient's preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2)):

1. Salary and bonus.

2. Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.

3. Earnings for services under non-equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives and are available generally to all salaried employees.

4. Change in pension value. This is the change in present value of defined benefit and actuarial pension plans.

5. Above-market earnings on deferred compensation which is not tax- qualified.

6. Other compensation, if the aggregate value of all such other compensation (e.g., severance, termination payments, value of life

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20 insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000.

Term 33. System for Award Management and Universal Identifier Requirements

A. Requirement for Registration in the System for Award Management (SAM) Unless the Recipient is exempted from this requirement under 2 CFR 25.110, the Recipient must maintain the currency of its information in SAM until the Recipient submits the final financial report required under this Award or receive the final payment, whichever is later. This requires that the Recipient reviews and updates the information at least annually after the initial registration, and more frequently if required by changes in its information or another award term.

B. Unique Entity Identifier (UEI)
SAM automatically assigns a UEI to all active SAM.gov registered entities. Entities no longer have to go to a third-party website to obtain their identifier. This information is displayed on SAM.gov.

If the Recipient is authorized to make subawards under this Award, the Recipient:

i. Must notify potential subrecipients that no entity (see definition in paragraph C of this award term) may receive a subaward from the Recipient unless the entity has provided its UEI number to the Recipient.

ii. May not make a subaward to an entity unless the entity has provided its UEI number to the Recipient.

C. Definitions
For purposes of this award term:

i. System for Award Management (SAM) means the federal repository into which an entity must provide information required for the conduct of business as a recipient. Additional information about registration procedures may be found at the SAM Internet site (currently at https://www.sam.gov).

ii. Unique Entity Identifier (UEI) is the 12-character, alpha-numeric identifier that will be assigned by SAM.gov upon registration.

iii. Entity, as it is used in this award term, means all of the following, as defined at 2 CFR Part 25, subpart C:

1. A Governmental organization, which is a State, local government, or Indian Tribe.

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21 2. A foreign public entity.

3. A domestic or foreign nonprofit organization.

4. A domestic or foreign for-profit organization.

5. A federal agency, but only as a subrecipient under an award or subaward to a non-federal entity.

iv. Subaward:

1. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which the Recipient received this Award and that the Recipient awards to an eligible subrecipient.

2. The term does not include the Recipient’s procurement of property and services needed to carry out the project or program (for further explanation, see 2 CFR 200.501 Audit requirements, (f) Subrecipients and Contractors and/or 2 CFR 910.501 Audit requirements, (f) Subrecipients and Contractors).

3. A subaward may be provided through any legal agreement, including an agreement that the Recipient considers a contract.

v. Subrecipient means an entity that:

1. Receives a subaward from the Recipient under this Award; and

2. Is accountable to the Recipient for the use of the federal funds provided by the subaward.

Term 34. Nondisclosure and Confidentiality Agreements Assurances

A. By entering into this agreement, the Recipient attests that it does not and will not require its employees or contractors to sign internal nondisclosure or confidentiality agreements or statements prohibiting or otherwise restricting its employees or contractors from lawfully reporting waste, fraud, or abuse to a designated investigative or law enforcement representative of a federal department or agency authorized to receive such information.

B. The Recipient further attests that it does not and will not use any federal funds to implement or enforce any nondisclosure and/or confidentiality policy, form, or agreement it uses unless it contains the following provisions:

i. ‘‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2)

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22 communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’’

ii. The limitation above shall not contravene requirements applicable to Standard Form 312, Form 4414, or any other form issued by a federal department or agency governing the nondisclosure of classified information.

iii. Notwithstanding provision listed in paragraph (a), a nondisclosure or confidentiality policy form or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure or confidentiality forms shall also make it clear that they do not bar disclosures to Congress, or to an authorized official of an executive agency or the Department of Justice, that are essential to reporting a substantial violation of law.

Term 35. Subrecipient and Contractor Approvals

A. At Risk Notice. The Recipient must obtain written approval by the Contracting Officer for reimbursement of costs associated with
subrecipients/activities/contractor listed in paragraph B. below. The Recipient is restricted from expending project funds (i.e., federal share and Recipient share) on the subrecipients’ and/or contractors’ supporting the tasks identified in paragraph B. below unless and until the Contracting Officer provides written approval. At its discretion, SCEP may not reimburse costs incurred prior to the date of any such written approval by the Contracting Officer.

B. Contracting Officer approval as set out above is required for the following:

Task # Activity and Subrecipients / Contractor Total Amount ($)

The Contracting Officer may require additional information concerning these tasks prior to providing written approval.

C. Upon written approval by the Contracting Officer, the Recipient may then receive

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23 payment for the tasks identified in paragraph B. above for allowable costs incurred, or SCEP will recognize costs incurred toward cost share requirements, if any, in accordance with the payment provisions contained in the Special Terms and Conditions of this agreement.

Term 36. Subrecipient Change Notification
Except for subrecipients specifically proposed as part of the Recipient’s Application for award, the Recipient must notify the Contracting Officer and Project Manager in writing 30 days prior to the execution of new or modified subrecipient agreements, including naming any To Be Determined subrecipients. This notification does not constitute a waiver of the prior approval requirements outlined in 2 CFR Part 200 as amended by 2 CFR Part 910, nor does it relieve the Recipient from its obligation to comply with applicable federal statutes, regulations, and executive orders.

In order to satisfy this notification requirement, the Recipient documentation must, at a minimum, include the following:

• A description of the research to be performed, the service to be provided, or the equipment to be purchased.
• Cost share commitment letter if the subrecipient is providing cost share to the Award. • An assurance that the process undertaken by the Recipient to solicit the subrecipient complies with their written procurement procedures as outlined in 2 CFR 200.317 through 200.327.
• An assurance that no planned, actual or apparent conflict of interest exists between the Recipient and the selected subrecipient and that the Recipient’s written standards of conduct were followed.1
• A completed Environmental Questionnaire, if applicable. • An assurance that the subrecipient is not a debarred or suspended entity. • An assurance that all required award provisions will be flowed down in the resulting subrecipient agreement.

The Recipient is responsible for making a final determination to award or modify subrecipient agreements under this agreement, but the Recipient may not proceed with the subrecipient agreement until the Contracting Officer determines, and provides the Recipient written notification, that the information provided is adequate.

1 It is DOE’s position that the existence of a “covered relationship” as defined in 5 CFR 2635.502(a)&(b) between a member of the Recipient’s owners or senior management and a member of a subrecipient’s owners or senior management creates at a minimum an apparent conflict of interest that would require the Recipient to notify the Contracting Officer and provide detailed information and justification (including, for example, mitigation measures) as to why the subrecipient agreement does not create an actual conflict of interest. The Recipient must also notify the Contracting Officer of any new subrecipient agreement with: (1) an entity that is owned or otherwise controlled by the Recipient; or (2) an entity that is owned or otherwise controlled by another entity that also owns or otherwise controls the Recipient, as it is DOE’s position that these situations also create at a minimum an apparent conflict of interest.

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24 Should the Recipient not receive a written notification of adequacy from the Contracting Officer within 30 days of the submission of the subrecipient documentation stipulated above, the Recipient may proceed to award or modify the proposed subrecipient agreement.

Term 37. Conference Spending
The Recipient shall not expend any funds on a conference not directly and programmatically related to the purpose for which the grant or cooperative agreement was awarded that would defray the cost to the United States Government of a conference held by any Executive branch department, agency, board, commission, or office for which the cost to the United States Government would otherwise exceed $20,000, thereby circumventing the required notification by the head of any such Executive Branch department, agency, board, commission, or office to the Inspector General (or senior ethics official for any entity without an Inspector General), of the date, location, and number of employees attending such conference.

Term 38. Recipient Integrity and Performance Matters

A. General Reporting Requirement
If the total value of your currently active Financial Assistance awards, cooperative agreements, and procurement contracts from all federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this federal award, then you as the recipient during that period of time must maintain the currency of information reported to the System for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal, or administrative proceedings described in paragraph 2 of this term. This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111-212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for federal procurement contracts, will be publicly available.

B. Proceedings About Which You Must Report
Submit the information required about each proceeding that:
i. Is in connection with the award or performance of a Financial Assistance, cooperative agreement, or procurement contract from the federal government;
ii. Reached its final disposition during the most recent five-year period; and iii. Is one of the following:

1. A criminal proceeding that resulted in a conviction, as defined in paragraph E of this award term and condition;

2. A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more;

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25 3. An administrative proceeding, as defined in paragraph E of this term, that resulted in a finding of fault and liability and your payment of either a monetary fine or penalty of $5,000 or more or
reimbursement, restitution, or damages in excess of $100,000; or

4. Any other criminal, civil, or administrative proceeding if:
a. It could have led to an outcome described in paragraph B.iii.1, 2, or 3 of this term;
b. It had a different disposition arrived at by consent or compromise with an acknowledgment of fault on your part; and
c. The requirement in this term to disclose information about the proceeding does not conflict with applicable laws and regulations.

C. Reporting Procedures
Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in paragraph B of this term. You do not need to submit the information a second time under assistance awards that you received if you already provided the information through SAM because you were required to do so under federal procurement contracts that you were awarded.

D. Reporting Frequency
During any period of time when you are subject to the requirement in paragraph A of this term, you must report proceedings information through SAM for the most recent five-year period, either to report new information about any proceeding(s) that you have not reported previously or affirm that there is no new information to report. Recipients that have federal contract, Financial Assistance awards, (including cooperative agreement awards) with a cumulative total value greater than $10,000,000, must disclose semiannually any information about the criminal, civil, and administrative proceedings.

E. Definitions
For purposes of this term:
i. Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the federal and state level but only in connection with performance of a federal contract or Financial Assistance awards. It does not include audits, site visits, corrective plans, or inspection of deliverables.
ii. Conviction means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere.

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26 iii. Total value of currently active Financial Assistance awards, cooperative agreements and procurement contracts includes:

1. Only the Federal share of the funding under any Federal award with a recipient cost share or match; and

2. The value of all expected funding increments under a federal award and options, even if not yet exercised.

Term 39. Export Control
The United States government regulates the transfer of information, commodities, technology, and software considered to be strategically important to the U.S. to protect national security, foreign policy, and economic interests without imposing undue regulatory burdens on legitimate international trade. There is a network of federal agencies and regulations that govern exports that are collectively referred to as “Export Controls.”

The Recipient is responsible for ensuring compliance with all applicable United States Export Control laws and regulations relating to any work performed under a resulting award.

The Recipient must immediately report to DOE any export control violations related to the project funded under this Award, at the recipient or subrecipient level, and provide the corrective action(s) to prevent future violations.

Term 40. Current and Pending Support

A. Definitions
For purposes of this term, the following definitions are applicable:

i. Current and pending support – (a) All resources made available, or expected to be made available, to an individual in support of the individual’s RD&D efforts, regardless of (i) whether the source is foreign or domestic; (ii) whether the resource is made available through the entity applying for an award or directly to the individual; or (iii) whether the resource has monetary value; and (b) includes in-kind contributions requiring a commitment of time and directly supporting the individual’s RD&D efforts, such as the provision of office or laboratory space, equipment, supplies, employees, or students. This term has the same meaning as the term Other Support as applied to researchers in NSPM-33: For researchers, Other Support includes all resources made available to a researcher in support of and/or related to all of their professional RD&D efforts, including resources provided directly to the individual or through the organization, and regardless of whether or not they have monetary value (e.g., even if the support received is only in-kind, such as office/laboratory space, equipment, supplies, or employees). This includes resource and/or financial support from all foreign and domestic entities, including but not limited to, gifts provided with terms or conditions, financial support for laboratory personnel, and

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27 participation of student and visiting researchers supported by other sources of funding.

ii. Foreign Government-Sponsored Talent Recruitment Program – An effort directly or indirectly organized, managed, or funded by a foreign government, or a foreign government instrumentality or entity, to recruit science and technology professionals or students (regardless of citizenship or national origin, or whether having a full-time or part-time position). Some foreign government-sponsored talent recruitment programs operate with the intent to import or otherwise acquire from abroad, sometimes through illicit means, proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to relocate physically to the foreign state for the above purpose. Some programs allow for or encourage continued employment at United States research facilities or receipt of federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to United States entities.

Compensation could take many forms including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.

iii. Senior/key personnel – an individual who contributes in a substantive, meaningful way to the scientific development or execution of a research, development, and demonstration (RD&D) project proposed to be carried out with DOE award.2

B. Disclosure Requirements
Prior to award, the Recipient was required to provide current and pending support disclosure statements and a Curriculum Vitae (CV) or Biosketch for each principal investigator (PI) and senior/key personnel, at the recipient and subrecipient level, regardless of funding source. In accordance with the Federal Assistance Reporting Checklist, throughout the life of the award, the Recipient must submit current and pending support disclosure statements and a CV or Biosketch for any new PI and senior/key personnel at the recipient and subrecipient level, added to the project funded under this Award within thirty (30) calendar days of the individual joining the project. In addition, if there are any changes to current and pending support disclosure

2 Typically, these individuals have doctoral or other professional degrees, although individuals at the masters or baccalaureate level may be considered senior/key personnel if their involvement meets this definition. Consultants , graduate students, and those with a postdoctoral role also may be considered senior/key personnel if they meet this definition.

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28 statements previously submitted to DOE, the Recipient must submit updated current and pending disclosure statements within thirty (30) calendar days of the change. The Recipient must ensure all PIs and senior/key personnel at the recipient and subrecipient level, are aware of the requirement to submit updated current and pending support disclosure statements to DOE.

Current and pending support is intended to allow the identification of potential duplication, overcommitment, potential conflicts of interest or commitment, and all other sources of support. All PIs and senior/key personnel at the recipient and subrecipient level must provide a list of all sponsored activities, awards, and appointments, whether paid or unpaid; provided as a gift with terms or conditions or provided as a gift without terms or conditions; full-time, part-time, or voluntary; faculty, visiting, adjunct, or honorary; cash or in-kind; foreign or domestic; governmental or private-sector; directly supporting the individual’s research or indirectly supporting the individual by supporting students, research staff, space, equipment, or other research expenses. All involvement with foreign government-sponsored talent recruitment programs must be identified in current and pending support.

For every activity, list the following items:
• The sponsor of the activity or the source of funding. • The award or other identifying number.
• The title of the award or activity. If the title of the award or activity is not descriptive, add a brief description of the research being performed that would identify any overlaps or synergies with the proposed research. • The total cost or value of the award or activity, including direct and indirect costs and cost share. For pending proposals, provide the total amount of requested funding.
• The award period (start date – end date).
• The person-months of effort per year being dedicated to the award or activity.

To identify overlap, duplication of effort, or synergistic efforts, append a description of the other award or activity to the current and pending support.

Details of any obligations, contractual or otherwise, to any program, entity, or organization sponsored by a foreign government must be provided to DOE upon request to either the applicant institution or DOE. Supporting documents of any identified source of support must be provided to DOE on request, including certified translations of any document.

The information may be provided in the format approved by the National Science Foundation (NSF), which may be generated by the Science Experts Network Curriculum Vita (SciENcv), a cooperative venture maintained at
https://www.ncbi.nlm.nih.gov/sciencv/, and is also available at https://www.nsf.gov/bfa/dias/policy/nsfapprovedformats/cps.pdf. The use of a format

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29 required by another agency is intended to reduce the administrative burden to researchers by promoting the use of common formats. Currently, the federal research agencies, including DOE, are working on a common disclosure form for current and pending support. At such time that the common disclosure form is published for use, the information may be provided in the common form.

Each PI and senior/key personnel must provide a separate disclosure statement listing the required information above regarding current and pending support. The individual must sign and date their respective disclosure statement and include the following certification statement:

I, [Full Name and Title], certify to the best of my knowledge and belief that the information contained in this Current and Pending Support Disclosure Statement is true, complete and accurate. I understand that any false, fictitious, or fraudulent information, misrepresentations, half- truths, or omissions of any material fact, may subject me to criminal, civil or administrative penalties for fraud, false statements, false claims or otherwise. (18 U.S.C. §§ 1001 and 287, and 31 U.S.C. 3729-3733 and 3801-3812). I further understand and agree that (1) the statements and representations made herein are material to DOE’s funding decision, and (2) I have a responsibility to update the disclosures during the period of performance of the award should circumstances change which impact the responses provided above.

If the NSF format is used, the individual must still include a signature, date, and a certification statement using the language included in the paragraph above. If the online version is used in SciENcv, a signature, date, and a certification statement must be attached until the SciENcv website automatically attaches a certification statement.

Term 41. Interim Conflict of Interest Policy for Financial Assistance The DOE interim Conflict of Interest Policy for Financial Assistance (COI Policy) can be found at https://www.energy.gov/management/department-energy-interim-conflict-interest-policy- requirements-financial-assistance. This policy is applicable to all non-federal entities applying for, or that receive, DOE funding by means of a financial assistance award (e.g., a grant, cooperative agreement, or technology investment agreement) and, through the implementation of this policy by the entity, to each Investigator who is planning to participate in, or is participating in, the project funded wholly or in part under this Award. The term “Investigator” means the PI and any other person, regardless of title or position, who is responsible for the purpose, design, conduct, or reporting of a project funded by DOE or proposed for funding by DOE.

The Recipient must flow down the requirements of the interim COI Policy to any subrecipient non-federal entities, with the exception of DOE National Laboratories. Further, the Recipient

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

30 must identify all financial conflicts of interests (FCOI), i.e., managed and unmanaged/unmanageable, in its initial and ongoing FCOI reports.

Prior to award, the Recipient was required to: 1) ensure all Investigators on this Award completed their significant financial disclosures; 2) review the disclosures; 3) determine whether a FCOI exists; 4) develop and implement a management plan for FCOIs; and 5) provide DOE with an initial FCOI report that includes all FCOIs (i.e., managed and unmanaged/unmanageable). Within 180 days of the date of the Award, the Recipient must be in full compliance with the other requirements set forth in DOE’s interim COI Policy.

Term 42. Organizational Conflict of Interest
Organizational conflicts of interest are those where, because of relationships with a parent company, affiliate, or subsidiary organization, the Recipient is unable or appears to be unable to be impartial in conducting procurement action involving a related organization (2 CFR 200.318(c)(2)).

The Recipient must disclose in writing any potential or actual organizational conflict of interest to the DOE Contracting Officer. The Recipient must provide the disclosure prior to engaging in a procurement or transaction using project funds with a parent, affiliate, or subsidiary organization that is not a state, local government, or Indian tribe. For a list of the information that must be included the disclosure, see Section VI. of the DOE interim Conflict of Interest Policy for Financial Assistance at https://www.energy.gov/management/department-energy- interim-conflict-interest-policy-requirements-financial-assistance.

If the effects of the potential or actual organizational conflict of interest cannot be avoided, neutralized, or mitigated, the Recipient must procure goods and services from other sources when using project funds. Otherwise, DOE may terminate the Award in accordance with 2 CFR 200.340 unless continued performance is determined to be in the best interest of the federal government.

The Recipient must flow down the requirements of the interim COI Policy to any subrecipient non-federal entities, with the exception of DOE National Laboratories. The Recipient is responsible for ensuring subrecipient compliance with this term.

If the Recipient has a parent, affiliate, or subsidiary organization that is not a state, local government, or Indian tribe, the Recipient must maintain written standards of conduct covering organizational conflicts of interest.

Term 43. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
As set forth in 2 CFR 200.216, recipients and subrecipients are prohibited from obligating or expending project funds (federal and non-federal funds) to:
(1) Procure or obtain;

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

31 (2) Extend or renew a contract to procure or obtain; or (3) Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (i) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). (ii) Telecommunications or video surveillance services provided by such entities or using such equipment.
(iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

See Public Law 115-232, section 889 for additional information.

Term 44. Participants and Other Collaborating Organizations Prior to award, the Recipient was required to provide the following information on participants and other collaborating organizations. If there are any changes to Participants and Collaborating Organizations information previously submitted to DOE, the Recipient must submit updated information within thirty (30) calendar days after the end of the quarterly reporting period in which the change occurred:

A. What individuals have worked on the project
Provide the following information for individuals at the prime recipient and subrecipient level: (1) all senior and key personnel; and (2) each person who has worked or is expected to work at least one person month per year on the project regardless of the source of compensation (a person month equals approximately 160 hours of effort).

i. Name
ii. Organization
iii. Job Title
iv. Role in the project
v. Start and end date (month and year) working on the project

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

32 vi. State, U.S. territory, and/or country of residence vii. Whether this person collaborated with an individual or entity located in a foreign country in connection with the scope of this Award, and viii. If yes to vii, whether the person traveled to the foreign country as part of that collaboration, and, if so, where and what the duration of stay was.

B. Organizations
Identify all subrecipients, contractors, U.S. National Laboratories, partners, and collaborating organizations. Recipients must also include all foreign collaborators as outlined in the Foreign Collaboration Considerations term of the award Terms and Conditions. For each, provide name, UEI, zip code or latitude/longitude, role in the project, contribution to the project, and start and end date.

Term 45. Human Subjects Research
Research involving human subjects, biospecimens, or identifiable private information conducted with Department of Energy (DOE) funding is subject to the requirements of DOE Order 443.1C, Protection of Human Research Subjects, 45 CFR Part 46, Protection of Human Subjects (subpart A which is referred to as the “Common Rule”), and 10 CFR Part 745, Protection of Human Subjects.

Federal regulation and the DOE Order require review by an Institutional Review Board (IRB) of all proposed human subjects research projects. The IRB is an interdisciplinary ethics board responsible for ensuring that the proposed research is sound and justifies the use of human subjects or their data; the potential risks to human subjects have been minimized; participation is voluntary; and clear and accurate information about the study, the benefits and risks of participating, and how individuals’ data/specimens will be protected/used, is provided to potential participants for their use in determining whether or not to participate.

The Recipient shall provide the Federal Wide Assurance number identified in item 1 below and the certification identified in item 2 below to DOE prior to initiation of any project that will involve interactions with humans in some way (e.g., through surveys); analysis of their identifiable data (e.g., demographic data and energy use over time); asking individuals to test devices, products, or materials developed through research; and/or testing of commercially available devices in buildings/homes in which humans will be present. Note: This list of examples is illustrative and not all inclusive.

No DOE funded research activity involving human subjects, biospecimens, or identifiable private information shall be conducted without:

1) A registration and a Federal Wide Assurance of compliance accepted by the Office of Human Research Protection (OHRP) in the Department of Health and Human Services; and
2) Certification that the research has been reviewed and approved by an Institutional Review Board (IRB) provided for in the assurance. IRB review may be accomplished by

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

33 the awardee’s institutional IRB; by the Central DOE IRB; or if collaborating with one of the DOE national laboratories, by the DOE national laboratory IRB.

The Recipient is responsible for ensuring all subrecipients comply and for reporting information on the project annually to the DOE Human Subjects Research Database (HSRD) at https://science.osti.gov/HumanSubjects/Human-Subjects-Database/home. Note: If a DOE IRB is used, no end of year reporting will be needed.

Additional information on the DOE Human Subjects Research Program can be found at:
https://science.osti.gov/ber/human-subjects.

Term 46. Fraud, Waste and Abuse
The mission of the DOE Office of Inspector General (OIG) is to strengthen the integrity, economy and efficiency of DOE’s programs and operations including deterring and detecting fraud, waste, abuse, and mismanagement. The OIG accomplishes this mission primarily through investigations, audits, and inspections of Department of Energy activities to include grants, cooperative agreements, loans, and contracts. The OIG maintains a Hotline for reporting allegations of fraud, waste, abuse, or mismanagement. To report such allegations, please visit https://www.energy.gov/ig/ig‐hotline.

Additionally, the Recipient must be cognizant of the requirements of 2 CFR 200.113 Mandatory disclosures, which states:

The non‐federal entity or applicant for a federal award must disclose, in a timely manner, in writing to the federal awarding agency or pass‐through entity all violations of federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the federal award. Non‐federal entities that have received a federal award including the term and condition outlined in appendix XII of 2 CFR Part 200 are required to report certain civil, criminal, or administrative proceedings to SAM (currently FAPIIS). Failure to make required disclosures can result in any of the remedies described in § 200.339. (See also 2 CFR part 180, 31 U.S.C. 3321, and 41 U.S.C. 2313.)

Term 47. Buy America Requirement for Infrastructure Projects

A. Definitions

Components See 2 CFR 184.3 “Definitions.”

Construction Materials See 2 CFR 184.3 “Definitions.”

Buy America Preference, Buy America Requirement, or Domestic Content Procurement Preference Requirement means a requirement that no amount of funds made available

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

34 through a program for federal financial assistance may be obligated for an infrastructure project unless—
(A) all iron and steel used in the project are produced in the United States; (B) the manufactured products used in the project are produced in the United States; or
(C) the construction materials used in the project are produced in the United States.

Infrastructure See 2 CFR 184.4 (c) and (d).

Manufactured Products See 2 CFR 184.3 “Definitions.”

Predominantly of iron or steel See 2 CFR 184.3 “Definitions."

Infrastructure project See 2 CFR 184.3 Definitions

Public- The Buy America Requirement does not apply to non-public infrastructure. For purposes of this guidance, infrastructure should be considered “public” if it is: (1) publicly owned or (2) privately owned but utilized primarily for a public purpose. Infrastructure should be considered to be “utilized primarily for a public purpose” if it is privately operated on behalf of the public or is a place of public accommodation.

B. Buy America Requirement

None of the funds provided under this award (federal share or recipient cost-share) may be used for a project for infrastructure unless:

1. All iron and steel used in the project is produced in the United States— this means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States;

2. All manufactured products used in the project are produced in the United States—this means the manufactured product was manufactured in the United States; and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation. See 2 CFR 184.5 for determining the cost of components for manufactured products; and

3. All construction materials are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States. See 2 CFR 184.6 for construction material standards.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

35 The Buy America Requirement only applies to those articles, materials, and supplies that are consumed in, incorporated into, or permanently affixed to the infrastructure in the project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought into the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America Requirement apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of the structure or permanently affixed to the infrastructure project.

The Buy America Requirement only applies to an article, material, or supply classified into one of the following categories* based on its status at the time it is brought to the work site for incorporation into an infrastructure project:

(i) Iron or steel products;
(ii) Manufactured products; or
(iii) Construction materials;

The Buy America Requirement only applies to the iron or steel products, manufactured products, and construction materials used for the construction, alteration, maintenance, or repair of public infrastructure in the United States when those items are consumed in, incorporated into, or permanently affixed to the infrastructure. An article, material, or supply incorporated into an infrastructure project should not be considered to fall into multiple categories, but rather must meet the Buy America Preference Requirement for only the single category in which it is classified.

All iron and steel, manufactured products, and construction materials used in the infrastructure project must be produced in the United States.

* Section 70917(c) of the Build America, Buy America Act states that “construction materials” do not include cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives. Section 70917(c) materials are excluded from Construction materials. Asphalt concrete pavement mixes are typically composed of asphalt cement (a binding agent) and aggregates such as stone, sand, and gravel. Accordingly, asphalt is also excluded from the definition of Construction materials.

Section 70917(c) materials, on their own, are not manufactured products. Further, Section 70917(c) materials should not be considered manufactured products when they are used at or combined proximate to the work site—such as is the case with wet concrete or hot mix asphalt brought to the work site for incorporation. However, when certain Section 70917(c) materials (such as stone, sand, and gravel) are used to produce a manufactured product, such as is precast concrete processed into a specific shape or form, and is in such state when brought to the work site, then that product is subject to the BABA requirements.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

36 Further clarification is provided in 2 CFR 184 on the circumstances under which a determination is made that Section 70917(c) materials should be treated as components of a manufactured product. That determination is based on consideration of: (i) the revised definition of the “manufactured products” at 2 CFR 184.3; (ii) a new definition of “section 70917(c) materials” at 2 CFR 184.3; (iii) new instructions at 2 CFR 184.4(e) on how and when to categorize articles, materials, and supplies; and (iv) new instructions at 2 CFR 184.4(f) on how to apply the Buy America preference by category.

Recipients are responsible for administering their award in accordance with the terms and conditions, including the Buy America Requirement. The recipient must ensure that the Buy America Requirement flows down to all subawards and that the subawardees and subrecipients comply with the Buy America Requirement. The Buy America Requirement term and condition must be included all sub-awards, contracts, subcontracts, and purchase orders for work performed under the infrastructure project.

C. Certification of Compliance
Recipients must certify or provide equivalent documentation for proof of compliance that a good faith effort was made to solicit bids for domestic products used in the infrastructure project under this award.

Recipients must also maintain certifications or equivalent documentation for proof of compliance that those articles, materials, and supplies that are consumed in, incorporated into, affixed to, or otherwise used in the infrastructure project, not covered by a waiver or exemption, are produced in the United States. The certification or proof of compliance must be provided by the suppliers or manufacturers of the iron, steel, manufactured products and construction materials and flow up from all subawardees, contractors and vendors to the recipient. Recipients must keep these certifications with the award/project files and be able to produce them upon request from DOE, auditors or Office of Inspector General.

D. Waivers
When necessary, recipients may apply for, and DOE may grant, a waiver from the Buy America Requirement. Requests to waive the application of the Buy America Requirement must be in writing to the CO. Waiver requests are subject to review by DOE and the Office of Management and Budget, as well as a public comment period of no less than 15 calendar days.

1. Waivers must be based on one of the following justifications:
a) Public Interest- Applying the Buy America Requirement would be inconsistent with the public interest;
b) Non-Availability- The types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or
c) Unreasonable Cost- The inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

37 2. Requests to waive the Buy America Requirement must include the following:
• Waiver type (Public Interest, Non-Availability, or Unreasonable Cost); • Recipient name and Unique Entity Identifier (UEI);
• Award information (Federal Award Identification Number, Assistance Listing number);
• A brief description of the project, its location, and the specific infrastructure involved;
• Total estimated project cost, with estimated federal share and recipient cost share breakdowns;
• Total estimated infrastructure costs, with estimated federal share and recipient cost share breakdowns;
• List and description of iron or steel item(s), manufactured goods, and/or construction material(s) the recipient seeks to waive from the Buy America Preference, including name, cost, quantity(ies), country(ies) of origin, and relevant Product Service Codes (PSC) and North American Industry Classification System (NAICS) codes for each;
• A detailed justification as to how the non-domestic item(s) is/are essential the project;
• A certification that the recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and non- proprietary communications with potential suppliers;
• A justification statement—based on one of the applicable justifications outlined above—as to why the listed items cannot be procured domestically, including the due diligence performed (e.g., market research, industry outreach, cost analysis, cost-benefit analysis) by the recipient to attempt to avoid the need for a waiver. This justification may cite, if applicable, the absence of any Buy America-compliant bids received for domestic products in response to a solicitation; • A description of the market research conducted that includes who conducted the market research, when it was conducted, sources that were used, and the methods used to conduct the research; and

3. How to submit a waiver
Requests to waive the application of the Buy America Requirement must be in writing to the CO.

DOE may request, and the recipient must provide, additional information for consideration of this wavier. DOE may reject or grant waivers in whole or in part depending on its review, analysis, and/or feedback from OMB or the public. DOE’s final determination regarding approval or rejection of the waiver request may not be appealed. Waiver requests may take up to 90 calendar days to process.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

38 Term 48. Prohibition related to Foreign Government-Sponsored Talent Recruitment Programs

a. Prohibition
Persons participating in a Foreign Government-Sponsored Talent Recruitment Program of a Foreign Country of Risk are prohibited from participating in this Award.

The recipient must exercise ongoing due diligence to reasonably ensure that no individuals participating on the DOE-funded project are participating in a Foreign Government- Sponsored Talent Recruitment Program of a Foreign Country of Risk. Consequences for violations of this prohibition will be determined according to applicable law, regulations, and policy. Further, the recipient must notify DOE within five (5) business days upon learning that an owner of the recipient or subrecipient or individual on the project team is or is believed to be participating in a Foreign Government-Sponsored Talent Recruitment Program of a Foreign Country of Risk. DOE may modify and add requirements related to this prohibition to the extent required by law.

b. Definitions

1. Foreign Government-Sponsored Talent Recruitment Program.

An effort directly or indirectly organized, managed, or funded by a foreign government, or a foreign government instrumentality or entity, to recruit science and technology professionals or students (regardless of citizenship or national origin, or whether having a full-time or part-time position). Some foreign government-sponsored talent recruitment programs operate with the intent to import or otherwise acquire from abroad, sometimes through illicit means, proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to relocate physically to the foreign state for the above purpose. Some programs allow for or encourage continued employment at United States research facilities or receipt of federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to U.S. entities.

Compensation could take many forms including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.

2. Foreign Country of Risk.

DOE has designated the following countries as foreign countries of risk: Iran, North Korea, Russia, and China. This list is subject to change.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

39 Term 49. Affirmative Action and Pay Transparency Requirements All federally assisted construction contracts exceeding $10,000 annually will be subject to the requirements of Executive Order 11246:

1. Recipients, subrecipients, and contractors are prohibited from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin.

2. Recipients and Contractors are required to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. This includes flowing down the appropriate language to all subrecipients, contractors and subcontractors.

3. Recipients, subrecipients, contractors and subcontractors are prohibited from taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or, under certain circumstances, the pay of their co‐workers.

The Department of Labor’s (DOL) Office of Federal Contractor Compliance Programs (OFCCP) uses a neutral process to schedule contractors for compliance evaluations. OFCCP’s Technical Assistance Guide should be consulted to gain an understanding of the requirements and possible actions the recipients, subrecipients, contractors, and subcontractors must take. See OFCCP’s Technical Assistance Guide at:
https://www.dol.gov/sites/dolgov/files/ofccp/Construction/files/ConstructionTAG.pdf?msclkid =9e397d68c4b111ec9d8e6fecb6c710ec.

Term 50. Potentially Duplicative Funding Notice
If the recipient or subrecipients have or receive any other award of federal funds for activities that potentially overlap with the activities funded under this Award, the recipient must promptly notify DOE in writing of the potential overlap and state whether project funds (i.e., recipient cost share and federal funds) from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items under this Award. If there are identical cost items, the recipient must promptly notify the DOE Grants Officer in writing of the potential duplication and eliminate any inappropriate duplication of funding.

Term 51. Transparency of Foreign Connections
The recipient must notify the DOE Grants Officer within fifteen (15) business days of learning of the circumstances listed below in relation to the recipient and subrecipients.

U.S. National Laboratories, domestic government entities, and institutions of higher education are only required to report on items 5 and 7. For subrecipient reporting requirements, applicability is determined by the subrecipient entity type, regardless of whether the prime recipient was exempt.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

40 1. Any current or pending subsidiary, foreign business entity, or offshore entity that is based in or funded by any foreign country of risk or foreign entity based in a country of risk;

2. Any current or pending contractual or financial obligation or other agreement specific to a business arrangement, or joint venture-like arrangement with an entity owned by a country of risk or foreign entity based in a country of risk;

3. Any current or pending change in ownership structure of the recipient or subrecipients that increases foreign ownership related to a country of risk. Each notification shall be accompanied by a complete and up-to-date capitalization table showing all equity interests held including limited liability company (LLC) and partnership interests, as well as derivative securities. Include both the number of shares issued to each equity holder, as well as the percentage of that series and of all equity on fully diluted basis. For each equity holder, provide the place of incorporation and the principal place of business, as applicable. If the equity holder is a natural person, identify the citizenship(s);

4. Any current or pending venture capital or institutional investment by an entity that has a general partner or individual holding a leadership role in such entity who has a foreign affiliation with any foreign country of risk;

5. Any current or pending technology licensing or intellectual property sales to a foreign country of risk;

6. Any changes to the recipient or the subrecipients’ board of directors, including additions to the number of directors, the identity of new directors, as well as each new director’s citizenship, shareholder affiliation (if applicable); each notification shall include a complete up-to-date list of all directors (and board observers), including their full name, citizenship and shareholder affiliation, date of appointment, duration of term, as well as a description of observer rights as applicable; and

7. Any of the following changes to the equipment proposed for use on the project:
a. Unmanned aircraft, control, and communication components originally made or manufactured in a foreign country of risk (including relabeled or rebranded equipment).
b. Coded equipment where the source code is written in a foreign country of risk. c. Equipment from a foreign country of risk that will be connected to the internet or other remote communication system.
d. Any companies from a foreign country of risk that will have physical or remote access to any part of the equipment used on the project after delivery.

Should DOE determine the connection poses a risk to economic or national security, DOE will require measures to mitigate or eliminate the risk.

DOE has designated the following countries as foreign countries of risk: Iran, North Korea, Russia, and China. This list is subject to change.

Recognizing the disclosures may contain business confidential information, subrecipients may submit their disclosures directly to DOE.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

41 Term 52. Foreign Collaboration Considerations

a. Consideration of new collaborations with foreign entities, organizations, and governments. The recipient must provide DOE with advanced written notification of any potential collaboration with foreign entities, organizations, or governments in connection with its DOE-funded award scope. The recipient must await further guidance from DOE prior to contacting the proposed foreign entity, organization or government regarding the potential collaboration or negotiating the terms of any potential agreement.

b. Existing collaborations with foreign entities, organizations, and governments. The recipient must provide DOE with a written list of all existing foreign collaborations, organizations, and governments in which has entered in connection with its DOE-funded award scope.

c. In general, a collaboration will involve some provision of a thing of value to, or from, the recipient. A thing of value includes but may not be limited to all resources made available to, or from, the recipient in support of and/or related to the Award, regardless of whether or not they have monetary value. Things of value also may include in-kind contributions (such as office/laboratory space, data, equipment, supplies, employees, students). In-kind contributions not intended for direct use on the Award but resulting in provision of a thing of value from or to the Award must also be reported.

Collaborations do not include routine workshops, conferences, use of the recipient’s services and facilities by foreign investigators resulting from its standard published process for evaluating requests for access, or the routine use of foreign facilities by awardee staff in accordance with the recipient’s standard policies and procedures.

Term 53. Impacted Indian Tribes
If any activities anticipated to take place under this agreement could potentially impact the resources or reserved rights of Indian Tribe(s), as defined in 25 U.S.C. § 5304 (e), then the recipient/awardee agrees to develop and maintain active and open communications with the potentially impacted Indian Tribe(s), during the period of performance of the agreement, and, if necessary, after the end of the agreement. Approval by DOE must be obtained before any activities take place that could impact Tribal resources or reserved rights, including but not limited to lands, cultural sites, sacred sites, water rights, mineral rights, fishing rights, and hunting rights. The recipient/awardee must coordinate with DOE on all Tribal interactions. DOE will determine if formal government-to-government consultation is needed, and DOE will conduct that consultation accordingly.

• Tribal lands is as defined in 25 U.S.C. §§ 3501(2), (3), (4)(A) and (13). • Indian Tribe is as defined in 25 U.S.C. § 5304 (e).

11086.0004/2576337v2

REIMBURSEMENT AGREEMENT

BETWEEN

SILICON VALLEY CLEAN ENERGY

AND

CITY OF MILPITAS

THIS AGREEMENT

is made and entered into as of ___________, 202
_
,

(“Effective Date”)
between
Silicon Valley Clean Energy (“SVCE”)

and
City of Milpitas (
“
City
”
)
.

SVCE
and City

are referred

to below individually as a
“
Party
”

and collectively as the “P
arties”.

In consideration of the mutual promises
and c
ovenants contained herein, the P
arties hereto mutually agree as follows:

1 .

Purpose of t
he Agreement
.

The City
was awarded

funding by

Department of Energy
’s State
and Community Energy Program’s (SCEP) Award No.

DE
-
SE0000736.0000

and it desires to use
$2,655,000 of grant funds
to
provide

rebates (“City Rebates”
)

to

City residents who purchase
electric
heat
pump water heaters (HPWH)
,

electric

heat pump heating ventilation and air conditioning (HVAC) systems ,
electric range/cooktops

and
/or

electrical service panels
.

The

Parties have determined that it will be mutually
beneficial f
or

SVCE

and City
to
include the City Rebates with the
r
ebates
SVCE

provides to its customers
(“SVCE Rebates”)
residing within the City’s jurisdiction
t
hrough its
Home
Rebates
Program (“SVCE
Program”
)
. The Parties
desire to take
advantage

of the economies
to the Parties
and convenience
to SVCE
customers
of

provi
di
ng
both City Rebates and SVCE Rebates to
SVCE
customers

in one transaction
. The
purpose of this Agreement is to set forth the terms
by which
SVCE

will
provide the City Rebate to its
customers,

and by which
City

will reimburse
SVCE

for
the payment of the City Rebate to the customers
.

2. Term

and Termination
. This Agreement shall commence on the Effective Date and terminate on

January 31, 2027
, unless earlier terminated

(“Term”)
. Either Party may terminate the Agreement without
cause upon
30 days’ written notice to the other Party.

The
Date of Termination shall be the 31
st

day
after
this written notice is issued.

City

shall remit payment to SVCE for any Reimbursable Expenses (defined
below)
incurred by SVCE
for City Rebate claims submitted prior to
the Date of Termination
.

SVCE
shall
complete
and provide
City Rebates

for all rebate
claims
submitted
after project completion
by customers
before
the
Date
of
Termination
.

On the Date of Termination, SVCE shall provide the City with all documentation
for all rebate
applications

for City Rebates that

have not yet submitted rebate claims after
project completion.

SVCE shall communicate and coordinate with the City
regarding each organizations’
responsibilities for all rebate applications and claims to ensure rebates and claims are properly handled .

3. Administrative Fee
. The Parties do not anticipate that there will be a measurable cost to SVCE to administer the City Reimbursements
.

SVCE
agrees to charge no fee

to the City f
or administering the

City Rebates

(“Administrative Fee”) for
at least
the first 120 days of the Term.

At the conclusion of the
120 days,

or any time thereafter,

SVCE
may by written notice to the City request a

written

Amendment to
this Agreement
allowing SVCE to charge an Administrative Fee to the City .

SVCE shall submit
documentation with this request
supporting
the proposed Administrative Fee.

Such Amendment may
require approval by the Milpitas City Council.

Nothing contained herein obligates the City to

approve any
requested Amendment.

Any
Amendment shall be in writing and sig
ned by both Parties.

In no event will
the
total
Administrative Fee
s

charged exceed (NTE) $100,000 over the Term of this Agreement.

SVCE

accepts the
risk
that
under the terms of this Agreement it
may not be able to fully recover its actual cost in
administering the City Rebates
.

4 .

SVCE
Responsibilities
. SVCE shall provide City Rebates to its customers who receive SVCE Rebates through the
SVCE
Program and are also eligible for City Rebates.

Where
ver

practical, SVCE shall
indicate the City Rebate
amount it is providing
to its customers

and attribute that rebate to the City’s
program
.

The amount of the City Rebates a customer is eligible for shall be set forth in Exhibit A, attached hereto an incorporated by this reference

(“City Rebate Schedule”)
.

The City Rebate Schedule

may be
updated
no more than once

every 180 days

by
mutual agreement of
City

and

SVCE
,
without amending this
Agreement. SVCE shall use the most recent City Rebates Schedule provided by the City to issue City Rebates to customers.

SVCE
shall not

provide
any
rebates that exceed the total
individual
project cost

for

11086.0004/2576337v2

a customer
. If the sum of
the
SVCE

Rebate

and
City
Rebate

exceeds the customer’s total project cost,
the
SVCE

R
ebates will be provided in full and
the
City Rebate

will be discounted accordingly
,

such that the
maximum rebate amount provided does not exceed the total individual
project cost

of the customer
.

SVCE
shall provide an invoice to the City in a monthly basis, which documents the City Rebates paid in the previous month

and any Administrative Fee
.

SVCE shall at all times, at its sole cost, comply with all applicable laws

in administering City Rebates
.

SVCE will work with the City to comply with
any

applicable
contractor

flow
-
down terms and conditions
,

set forth in Exhibit B, which are required under
the City’s grant
agreement with the U.S. Department of Energy.

5 .

Reimbursement

by City
.

City

agrees to reimburse
SVCE

for
any Administrative

Fees
, if
approved,

and
the
City Rebates paid by SVCE
,

(“Reimbursable Expenses”)
within thirty (30) days of receipt
of invoice by City.

SVCE

will
incur

the
Reimbursable

Expense
s in
reliance

o
n
City
’s representation that it
will reimburse
SVCE

for such Reimbursable
Expense
s as set
forth

in thi
s

Agreement.

6 .

Indemnification
.

SVCE

shall defend, indemnify and hold harmless the
City

(including its
officers, employees and agents) against any claim, loss or liability arising out of SVCE’s

negligence or
misconduct in the performance
of this Agreement
.

SVCE’s obligation to indemnify the City shall not apply to
any claim, loss or liability arising out of
City
’s negligence or misconduct
in
City’s

administration

of

City
Rebates outside of this Agreement.

7 .

Miscellaneou
s.

A.

Notices
.

Any notices which either P
arty may desire to give to the
other P
arty under this
Agreement must be in writing and may be given either by (i) personal service with return receipt or affidavit of delivery, (ii) delivery by a reputable document delivery service, such as, but not limited to, FedEx, that provides a receipt s
howing date and time of delivery, or (iii) mailing in the United States Mail, certified mail, postage prepaid, return receipt requested, a
ddressed to the address of the P
arty as set forth below o
r
at any other address
as that P
arty may later designate by a written notice provided in accordance with this Section. Notice shall be effective upon delivery to the addresses specified below or on the third business day following deposit with the document delivery service or Unite d States Mail as provided above.

SVCE
:

Silicon Valley Clean Energy

333 W. El Camino Real, Suite 330

Sunnyvale, CA 94087

Attn:

Nupur Hiremath
, Manager of Decarbonization Programs

[email protected]

City
:

City of Milpitas

1265 N Milpitas Blvd.

Milpitas, CA 95035

Attn:

Elaine Marshall, Deputy Public Works Director

408
-
586
-
2600

[email protected]

Either P
arty may change its address for
notices by notifying the other P
arty.

B.

Applicable Law/Venue
.

This Agreement shall be deemed to have been entered into and shall, in all respects, be interpreted, construed, enforced and governed by and under the laws of the State of California. The venue of any legal action relating to this Agreement shall be

the Superior Court of
California
, County of
Santa Clara
.

C.

Entire Agreement, Modifications
. This Agreement and the documents referenced herein
contain the complete expression of t
he whole agreement between the P
arties with respect to the obligations
set forth herein, and there are no promises, representations, agreements, warranties or inducements, either

11086.0004/2576337v2

expressed verbally or implied, except as are fully set forth herein. No alteration, supplement, modification or amendment of this Agreement shall be binding unle
ss executed in writing by both P
arties.

D
.

Independent Advice of Legal Counsel
. Each P
arty acknowledges that it ha
s

retained
independent legal counsel of its own choice to review this Agreement and that prio r to the execution hereof
each P
arty has had the opportunity to review the terms of this Agreement with its counsel and is entering into this Agreement after such review.

E
.

Authority to Execute Agreement
.

The person or persons executing

this Agreement on
behalf of a P
arty warrants and represents that he or she has the authority to execute this Agreement on behalf of the

P
arty and
has the authority to bind that P
arty to the performance of its obligations hereunder.

F
.

Validity of Agreement
. All P
arties agree
that this Agreement is le
gal, valid and binding
on each P
arty and enforceable in accordance with its terms.

G
.

Binding on Successors
. Except as further provided in this paragraph, this Agreement shall be binding on a
nd inure to the benefit of the P
arties hereto and their respective heirs, legal representatives, successors, assigns, executors and administrators.

H.

No Third
-
Party Rights
. This Agreement shall not create

or be construed to create

any rights
in, or inure to the benefit of, any third party.

I
.

Ambiguity
. This Agreement is deemed to ha
ve been prepared by all of the P
arties hereto,
and any uncertainty or ambiguity herein shall not be interpreted against the drafter, but rather, if such ambiguity or uncertainty exists, shall be interpreted according to applicable rules of interpretation of contracts under the laws of th
e State of California.

J
.

Assignment
. This Agreement sha
ll not be assignable by either P
arty in whole or in part
without the prio
r written consent of the other P
arty
. The assigning P
a
rty shall provide to the other P
arty
thirty (30) days’ advanced notice of any such proposed assignment.

K
.

Severability
. If any provision or portion of this Agreement shall be adjudged invalid or unenforceable by a court or tribunal of competent jurisdiction or by operation of any applicable laws, such provision or portion of this Agreement shall be deemed omitted and the

remaining provisions and portions
shall remain in full force and effect.

L
.

Counterparts/Signatures
. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.

Moreover, electronic, scanned or facsimile copies of signatures shall be accepted as valid

and binding.

M
.

Waiver
. No term or provision hereof will
be considered waived by either P
arty, and no
breach is exc
used or consented to by either P
arty, unless such waiver or consent is in writi
ng and signed on
behalf of the P
arty against whom the waiver is asserted. No expres
s or implied consent by either P
arty
to,
waiver of, or failure of a P
arty to enforce its rights with re
spect to a breach by the other P
arty shall constitute
consent to or, waiver of any subsequent or other br
each by the other P
arty.

IN

WITNESS

WHEREOF,

the

Parties

have

executed

this

Agreement

below

on

the

date

first

written

above.

11086.0004/2576337v2

SILICON

VALLEY

CLEAN

ENERGY

RECOMMENDED FOR APPROVAL
:

By:

Justin Zagunis, Director of Customer Success

Date: _________________________________

By: __________________________________

Monica Padilla, Chief Executive Officer

Date: _________________________________

APPROVED AS TO FORM BY COUNSEL FOR SVCE:

By:

Michael Callahan, General Counsel

Date: _________________________________

CITY OF MILPITAS

By:

Luz Cofresi
-
Howe
,
Finance Director

Date: _________________________________

By:

Ned Thomas
,
City Manager

Date:
_________________________________

APPROVED AS TO FORM BY COUNSEL FOR CITY OF MILPITAS:

By:

Christopher Creech
,
Acting
City Attorney

Date: _________________________________

11086.0004/2576337v2

EXHIBIT A

CITY REBATE SCHEDULE

SVCE will provide City Rebates to SVCE customers who are residents of the City in the following amounts:

Customer Category

Appliance Type

Value of City
Rebate

(per
appliance)

Market
-
rate and
Income
-
qualified
1 customers

Heat Pump Water Heater
(HPWH)

Replacing gas water
heater

$850

Replacing electric
resistance water heater

$0

Heat Pump Heating
Ventilation, and Air
Conditioning (HP HVAC)

Replacing gas furnace

$
2,000

Induction Cooktop/Range

Replacing gas
cooktop/range

$
500

Electrical panel upgrade
2 $
250

This exhibit may be updated no more than once every 180 days by mutual agreement of City and SVCE, without amending this Agreement.

1 Latest income
-
qualifications from May 2024
(
https://svcleanenergy.org/wp
-
content/uploads/FFH_Income_Qualifications_May2024.pdf
).

2 As specified in SVCE’s Electrical Infrastructure Upgrade specifications:
https://svcleanenergy.org/wp
-
content/uploads/6
-
Appliance
-
Specifications
-
Jun
-
2024
-
English.pdf

11086.0004/2576337v2

EXHIBIT B

UNITED STATES DEPARTMENT OF ENERGY

GRANT AGREEMENT

TERMS AND CONDITIONS

Terms and Conditions begin on next page.

Template Version 9/8/2023
Special Terms and Conditions
Award No. DE-SE0000736.0000 With City of Milpitas (CA)

Special Terms and Conditions

City of Milpitas, which is identified in Block 5 of the Assistance Agreement, and the State and Community Energy Program (“SCEP”), an office within the United States Department of Energy (“DOE”), enter into this Award, referenced above, to achieve the project objectives and the technical milestones and deliverables stated in the Attachments to this Award.

This Award consists of the following documents, including all terms and conditions therein:

Assistance Agreement
Special Terms and Conditions
Attachment 1 Statement of Project Objectives and
Milestone Summary Table
Attachment 2 Federal Assistance Reporting Checklist and Instructions
Attachment 3 Budget Information SF-424A
Attachment 4 Intellectual Property Provisions
Attachment 5 NEPA Determination

The following are incorporated into this Award by reference:
• DOE Assistance Regulations, 2 CFR Part 200 as amended by 2 CFR Part 910 at http://www.eCFR.gov.
• National Policy Requirements (November 12, 2020) at
http://www.nsf.gov/awards/managing/rtc.jsp.
• The Recipient’s application/proposal as approved by SCEP.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

2 Table of Contents
Subpart A. General Provisions ............................................................................................................................ 4 Term 1. Legal Authority and Effect ....................................................................................................................... 4 Term 2. Flow Down Requirement......................................................................................................................... 4 Term 3. Compliance with Federal, State, and Municipal Law ............................................................................. 4 Term 4. Inconsistency with Federal Law .............................................................................................................. 4 Term 5. Federal Stewardship ................................................................................................................................ 4 Term 6. Federal Involvement ................................................................................................................................ 4 Term 7. Foreign National Participation ................................................................................................................ 6 Term 8. Post-Award Due Diligence Reviews ........................................................................................................ 6 Term 9. NEPA Requirements ................................................................................................................................ 6 Term 10. Performance of Work in United States ................................................................................................... 7 Term 11. Notice Regarding the Purchase of American-Made Equipment and Products – Sense of Congress .... 8 Term 12. Reporting Requirements ......................................................................................................................... 8 Term 13. Lobbying ................................................................................................................................................... 8 Term 14. Publications ............................................................................................................................................. 8 Term 15. No-Cost Extension ................................................................................................................................... 9 Term 16. Property Standards .................................................................................................................................. 9 Term 17. Insurance Coverage ............................................................................................................................... 10 Term 18. Real Property ......................................................................................................................................... 10 Term 19. Supplies .................................................................................................................................................. 10 Term 20. Property Trust Relationship .................................................................................................................. 10 Term 21. Record Retention ................................................................................................................................... 10 Term 22. Audits ..................................................................................................................................................... 10 Term 23. Site Visits and Recipient Administrative Organizational Reviews ....................................................... 11 Subpart B. Financial Provisions.......................................................................................................................... 12 Term 24. Maximum Obligation ............................................................................................................................. 12 Term 25. Refund Obligation.................................................................................................................................. 12 Term 26. Allowable Costs ..................................................................................................................................... 12 Term 27. Use of Program Income ......................................................................................................................... 12 Term 28. Payment Procedures ............................................................................................................................. 12 Term 29. Budget Changes ..................................................................................................................................... 14 Subpart C. Miscellaneous Provisions ................................................................................................................ 15 Term 30. Environmental, Safety and Health Performance of Work at DOE Facilities ........................................ 15 Term 31. Insolvency, Bankruptcy or Receivership ............................................................................................... 15 Term 32. Reporting Subawards and Executive Compensation ............................................................................ 16 Term 33. System for Award Management and Universal Identifier Requirements ........................................... 20 Term 34. Nondisclosure and Confidentiality Agreements Assurances ............................................................... 21 Term 35. Subrecipient and Contractor Approvals................................................................................................ 22 Term 36. Subrecipient Change Notification ......................................................................................................... 23 Term 37. Conference Spending ............................................................................................................................. 24 Term 38. Recipient Integrity and Performance Matters ...................................................................................... 24 Term 39. Export Control ........................................................................................................................................ 26 Term 40. Current and Pending Support................................................................................................................ 26 Term 41. Interim Conflict of Interest Policy for Financial Assistance .................................................................. 29 Term 42. Organizational Conflict of Interest ........................................................................................................ 30 Term 43. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment ............ 30 Term 44. Participants and Other Collaborating Organizations ............................................................................ 31

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

3 Term 45. Human Subjects Research ..................................................................................................................... 32 Term 46. Fraud, Waste and Abuse ....................................................................................................................... 33 Term 47. Buy America Requirement for Infrastructure Projects ......................................................................... 33 Term 48. Prohibition related to Foreign Government-Sponsored Talent Recruitment Programs ..................... 38 Term 49. Affirmative Action and Pay Transparency Requirements .................................................................... 39 Term 50. Potentially Duplicative Funding Notice ................................................................................................ 39 Term 51. Transparency of Foreign Connections................................................................................................... 39 Term 52. Foreign Collaboration Considerations .................................................................................................. 41 Term 53. Impacted Indian Tribes .......................................................................................................................... 41

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

4 Subpart A. General Provisions

Term 1. Legal Authority and Effect
A DOE financial assistance award is valid only if it is in writing and is signed, either in writing or electronically, by a DOE Contracting Officer.

The Recipient may accept or reject the Award. A request to draw down DOE funds or acknowledgement of award documents by the Recipient’s authorized representative through electronic systems used by DOE, specifically FedConnect, constitutes the Recipient's acceptance of the terms and conditions of this Award. Acknowledgement via FedConnect by the Recipient’s authorized representative constitutes the Recipient's electronic signature.

Term 2. Flow Down Requirement
The Recipient agrees to apply the terms and conditions of this Award, including the Intellectual Property Provisions, to all subrecipients (and contractors, as appropriate). See, 2 CFR 200.101(b)(2), 2 CFR 200.327, and 2 CFR 200.332.

Term 3. Compliance with Federal, State, and Municipal Law The Recipient is required to comply with applicable federal, state, and local laws and regulations for all work performed under this Award. The Recipient is required to obtain all necessary federal, state, and local permits, authorizations, and approvals for all work performed under this Award.

Term 4. Inconsistency with Federal Law
Any apparent inconsistency between federal statutes and regulations and the terms and conditions contained in this Award must be referred to the DOE Award Administrator for guidance.

Term 5. Federal Stewardship
SCEP will exercise normal federal stewardship in overseeing the project activities performed under this Award. Stewardship activities include, but are not limited to, conducting site visits; reviewing performance and financial reports; providing technical assistance and/or temporary intervention in unusual circumstances to address deficiencies that develop during the project; assuring compliance with terms and conditions; and reviewing technical performance after project completion to ensure that the project objectives have been accomplished.

Term 6. Federal Involvement

A. Review Meetings
The Recipient, including but not limited to, the principal investigator (or, if applicable, co- principal investigators), is required to participate in periodic review meetings with SCEP. Review meetings enable SCEP to assess the work performed under this Award and determine whether

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

5 the Recipient has timely achieved the technical milestones and deliverables stated in Attachment 1 to this Award.

SCEP shall determine the frequency of review meetings and select the day, time, and location of each review meeting and shall do so in a reasonable and good faith manner. SCEP will provide the Recipient with reasonable notice of the review meetings.

For each review meeting, the Recipient is required to provide a comprehensive overview of the project, including:
• The Recipient’s technical progress compared to the Milestone Summary Table stated in Attachment 1 to this Award.
• The Recipient’s actual expenditures compared to the approved budget in Attachment 3 to this Award.
• Other subject matter specified by the DOE Technology Manager/Project Officer.

B. Project Meetings
The Recipient is required to notify SCEP in advance of scheduled tests and internal project meetings that would entail discussion of topics that could result in major changes to the baseline project technical scope/approach, cost, or schedule. Upon request by SCEP, the Recipient is required to provide SCEP with reasonable access (by telephone, webinar, or otherwise) to the tests and project meetings. The Recipient is not expected to delay any work under this Award for the purpose of government insight.

C. Site Visits
SCEP's authorized representatives have the right to make site visits at reasonable times to review project accomplishments and management control systems and to provide technical assistance, if required. The Recipient must provide, and must require subrecipients to provide, reasonable access to facilities, office space, resources, and assistance for the safety and convenience of the government representatives in the performance of their duties. All site visits and evaluations must be performed in a manner that does not unduly interfere with or delay the work.

D. Technical Milestones and Deliverables
Attachment 1 to this Award establishes technical milestones and deliverables. If the Recipient fails to achieve two or more technical milestones and deliverables, SCEP may renegotiate the Statement of Project Objectives and/or Milestone Summary Table in Attachment 1 to this Award. In the alternative, SCEP may deem the Recipient’s failure to achieve these technical milestones and deliverables to be material noncompliance with the terms and conditions of this Award and take action to suspend or terminate the Award.

E. SCEP Access
The Recipient must provide any information, documents, site access, or other assistance requested by SCEP for the purpose of its federal stewardship or substantial involvement.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

6 Term 7. Foreign National Participation
A “foreign national” is defined as any person who is not a U.S. citizen by birth or naturalization.

If the Recipient (including any of its subrecipients and contractors) anticipates involving foreign nationals in the performance of the Award, the Recipient must, upon DOE’s request, provide DOE with specific information about each foreign national to ensure compliance with the requirements for participation and access approval. The volume and type of information required may depend on various factors associated with the Award. The DOE Contracting Officer will notify the Recipient if this information is required.

DOE may elect to deny a foreign national’s participation in the Award. Likewise, DOE may elect to deny a foreign national’s access to a DOE sites, information, technologies, equipment, programs, or personnel. DOE’s determination to deny participation or access is not appealable.

Term 8. Post-Award Due Diligence Reviews
During the period of performance of the Award, DOE may conduct ongoing due diligence reviews, through Government resources, to identify potential risks of undue foreign influence.

In the event a risk is identified, DOE may require risk mitigation measures, including but not limited to, requiring an individual or entity not participate in the Award.

Term 9. NEPA Requirements
DOE must comply with the National Environmental Policy Act (NEPA) prior to authorizing the use of federal funds. Based on all information provided by the Recipient, SCEP has made a NEPA determination by issuing a categorical exclusion (CX) for all activities listed in the Statement of Project Objectives (SOPO) approved by the Contracting Officer and the DOE NEPA Determination. The Recipient is thereby authorized to use federal funds for the defined project activities, except where such activity is subject to a restriction set forth elsewhere in this Award.

This authorization is specific to the project activities and locations as described in the SOPO approved by the Contracting Officer and the DOE NEPA Determination.

If the Recipient later intends to add to or modify the activities or locations as described in the approved SOPO and the DOE NEPA Determination, those new activities/locations or modified activities/locations are subject to additional NEPA review and are not authorized for federal funding until the Contracting Officer provides written authorization on those additions or modifications. Should the Recipient elect to undertake activities or change locations prior to written authorization from the Contracting Officer, the Recipient does so at risk of not receiving federal funding for those activities, and such costs may not be recognized as allowable cost share.

DOE must consider the effects on historic properties, pursuant to Section 106 of the National Historic Preservation Act (NHPA). Section 106 applies to historic properties that are listed in or eligible for listing in the National Register of Historic Places. DOE and recipients selected for an

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

7 award must consider the effects of project activities on historic properties, pursuant to Section 106 of the NHPA

Awardees in States or Territories with a DOE-executed Programmatic Agreement (PA) must adhere to all the Stipulations outlined in the PA, including reporting requirements. Executed PAs are available on this website: https://www.energy.gov/scep/historic-preservation- executed-programmatic-agreements. So long as the proposed project/undertaking is within a State or Territory that has executed a Programmatic Agreement, the terms of the Programmatic Agreement will apply to all SCEP Recipients and subrecipients within the applicable state, and their activities. Applicants that do NOT have a PA which includes Guam and tribal governments, must follow the added restrictions in a NEPA determination to ensure Section 106 compliance.

Term 10. Performance of Work in United States

A. Requirement
All work performed under this Award must be performed in the United States unless the Contracting Officer provides a waiver. This requirement does not apply to the purchase of supplies and equipment; however, the Recipient should make every effort to purchase supplies and equipment within the United States. The Recipient must flow down this requirement to its subrecipients.

B. Failure to Comply
If the Recipient fails to comply with the Performance of Work in the United States requirement, the Contracting Officer may deny reimbursement for the work conducted outside the United States and such costs may not be recognized as allowable Recipient cost share of if the work is performed by the Recipient, subrecipients, contractors or other project partners.

C. Waiver for Work Outside the U.S.

All work performed under this Award must be performed in the United States. However, the Contracting Officer may approve the Recipient to perform a portion of the work outside the United States under limited circumstances. The Recipient must obtain a waiver from the Contracting Officer prior to conducting any work outside the U.S. To request a waiver, the Recipient must submit a written waiver request to the Contracting Officer, which includes the information as required in the FOA that the Award was selected under.

For the rationale, the Recipient must demonstrate to the satisfaction of the Contracting Officer that the performance of work outside the United States would further the purposes of the FOA that the Award was selected under and is in the economic interests of the United States. The Contracting Officer may require additional information before considering such request.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

8 Term 11. Notice Regarding the Purchase of American-Made Equipment and Products – Sense of Congress
It is the sense of the Congress that, to the greatest extent practicable, all equipment and products purchased with funds made available under this Award should be American-made.

Term 12. Reporting Requirements

A. Requirements
The reporting requirements for this Award are identified on the Federal Assistance Reporting Checklist, attached to this Award. Failure to comply with these reporting requirements is considered a material noncompliance with the terms of the Award.

Noncompliance may result in withholding of future payments, suspension, or termination of the current award, and withholding of future awards. A willful failure to perform, a history of failure to perform, or unsatisfactory performance of this and/or other financial assistance awards, may also result in a debarment action to preclude future awards by federal agencies.

B. Dissemination of Scientific and Technical Information Scientific and Technical Information (STI) generated under this Award will be submitted to DOE via the Office of Scientific and Technical Information’s Energy Link (E-Link) system. STI submitted under this Award will be disseminated via DOE’s OSTI.gov website subject to approved access limitations. Citations for journal articles produced under the Award will appear on the DOE PAGES website.

C. Restrictions
Scientific and Technical Information submitted to E-Link must not contain any Protected Personal Identifiable Information (PII), limited rights data (proprietary data), classified information, information subject to export control classification, or other information not subject to release.

Term 13. Lobbying
By accepting funds under this Award, the Recipient agrees that none of the funds obligated on the Award shall be expended, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress, other than to communicate to Members of Congress as described in 18 U.S.C. § 1913. This restriction is in addition to those prescribed elsewhere in statute and regulation.

Term 14. Publications
The Recipient is required to include the following acknowledgement in publications arising out of, or relating to, work performed under this Award, whether copyrighted or not:

• Acknowledgment: “This material is based upon work supported by the U.S. Department of Energy’s State and Community Energy Program (SCEP) Award Number DE-

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

9 SE0000736.”

• Full Legal Disclaimer: “This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness, or usefulness of any information, apparatus, product, or process disclosed, or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recommendation, or favoring by the United States Government or any agency thereof.

The views and opinions of authors expressed herein do not necessarily state or reflect those of the United States Government or any agency thereof.”

Abridged Legal Disclaimer: “The views expressed herein do not necessarily represent the views of the U.S. Department of Energy or the United States Government.”

Recipients should make every effort to include the full Legal Disclaimer. However, in the event that recipients are constrained by formatting and/or page limitations set by the publisher, the abridged Legal Disclaimer is an acceptable alternative.

The Award may be subject to a Data Management Plan as part of the Intellectual Property clause set that explains how data generated in the course of the work performed under this Award will be shared or preserved or, when justified, explains why data sharing or preservation is not possible or scientifically appropriate.

Term 15. No-Cost Extension
As provided in 2 CFR 200.308, the Recipient must provide the Contracting Officer with notice in advance if it intends to utilize a one-time, no-cost extension of this Award. The notification must include the supporting reasons and the revised period of performance. The Recipient must submit this notification in writing to the Contracting Officer and DOE Technology Manager/Project Officer at least 30 days before the end of the current budget period.

Any no-cost extension will not alter the project scope, milestones, deliverables, or budget of this Award.

Term 16. Property Standards
The complete text of the Property Standards can be found at 2 CFR 200.310 through 200.316.

Also see 2 CFR 910.360 for additional requirements for real property and equipment for for- profit recipients.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

10 Term 17. Insurance Coverage
See 2 CFR 200.310 for insurance requirements for real property and equipment acquired or improved with federal funds. Also see 2 CFR 910.360(d) for additional requirements for real property and equipment for for-profit recipients.

Term 18. Real Property
Subject to the conditions set forth in 2 CFR 200.311, title to real property acquired or improved under a federal award will conditionally vest upon acquisition in the non-federal entity. The non-federal entity cannot encumber this property and must follow the requirements of 2 CFR 200.311 before disposing of the property.

Except as otherwise provided by federal statutes or by the federal awarding agency, real property will be used for the originally authorized purpose as long as needed for that purpose.

When real property is no longer needed for the originally authorized purpose, the non-federal entity must obtain disposition instructions from DOE or pass-through entity.

See 2 CFR 200.311 for additional requirements pertaining to real property acquired or improved under a federal award. Also see 2 CFR 910.360 for additional requirements for real property for for-profit recipients.

Term 19. Supplies
See 2 CFR 200.314 for requirements pertaining to supplies acquired under a federal award. See also 2 CFR 200.453 Materials and supplies costs, including costs of computing devices.

Term 20. Property Trust Relationship
Real property, equipment, and intangible property, that are acquired or improved with a federal award must be held in trust by the non-federal entity as trustee for the beneficiaries of the project or program under which the property was acquired or improved. See 2 CFR 200.316 for additional requirements pertaining to real property, equipment, and intangible property acquired or improved under a federal award.

Term 21. Record Retention
Consistent with 2 CFR 200.334 through 200.338, the Recipient is required to retain records relating to this Award.

Term 22. Audits

A. Government-Initiated Audits
The Recipient must provide any information, documents, site access, or other assistance requested by SCEP, DOE or federal auditing agencies (e.g., DOE Inspector General, Government Accountability Office) for the purpose of audits and investigations. Such assistance may include, but is not limited to, reasonable access to the Recipient’s records relating to this Award.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

11 Consistent with 2 CFR part 200 as amended by 2 CFR part 910, DOE may audit or review the Recipient’s financial records or administrative records relating to this Award at any time.

Audits or reviews may be performed to determine if the Recipient has an adequate financial management system to estimate, bill, and record federal government expenditures in accordance with the criteria in 2 CFR 200.302, Generally Accepted Accounting Principles (GAAP), Generally Accepted Government Accounting Standards (GAGAS), and Standard Form 1408. Government-initiated audits are generally paid for by DOE.

DOE may conduct a final audit at the end of the project period (or the termination of the Award, if applicable). Upon completion of the audit, the Recipient is required to refund to DOE any payments for costs that were determined to be unallowable. If the audit has not been performed or completed prior to the closeout of the award, DOE retains the right to recover an appropriate amount after fully considering the recommendations on disallowed costs resulting from the final audit.

DOE will provide reasonable advance notice of audits and will minimize interference with ongoing work, to the maximum extent practicable.

B. Annual Independent Audits (Single Audit or Compliance Audit) The Recipient must comply with the annual independent audit requirements in 2 CFR 200.500 through .521 for institutions of higher education, nonprofit organizations, and state and local governments (Single audit), and 2 CFR 910.500 through .521 for for-profit entities (Compliance audit).

The annual independent audits are separate from Government-initiated audits discussed in part A. of this Term and must be paid for by the Recipient. To minimize expense, the Recipient may have a Compliance audit in conjunction with its annual audit of financial statements. The financial statement audit is not a substitute for the Compliance audit. If the audit (Single audit or Compliance audit, depending on Recipient entity type) has not been performed or completed prior to the closeout of the award, DOE may impose one or more of the actions outlined in 2 CFR 200.339, Remedies for Noncompliance.

Term 23. Site Visits and Recipient Administrative Organizational Reviews SCEP’s authorized representatives have the right to make site visits and conduct Recipient Administrative Organizational Reviews to review the project and management control systems and to provide technical assistance, as appropriate. The Recipient must provide, and must require its subrecipients and contractors to provide, reasonable access to facilities, office space, resources, and assistance for the safety and convenience of the government representatives in the performance of their duties. SCEP will make reasonable efforts to ensure these site visits do not interfere with or unduly delay project work.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

12 Subpart B. Financial Provisions

Term 24. Maximum Obligation
The maximum obligation of DOE for this Award is the total “Funds Obligated” stated in Block 13 of the Assistance Agreement to this Award.

Term 25. Refund Obligation
The Recipient must refund any excess payments received from SCEP, including any costs determined unallowable by the Contracting Officer. At the end of the project period (or the termination of the Award, if applicable), the Recipient must refund to SCEP the difference between (1) the total payments received from SCEP, and (2) the federal share of the costs incurred. Refund obligations under this Term do not supersede the annual reconciliation or true up process if specified under the Indirect Cost Term.

Term 26. Allowable Costs
SCEP determines the allowability of costs in accordance with 2 CFR Part 200 as amended by 2 CFR Part 910. All project costs must be allowable, allocable, and reasonable. The Recipient must document and maintain records of all project costs, including, but not limited to, the costs paid by federal funds, costs claimed by its subrecipients and project costs that the Recipient claims as cost sharing, including in-kind contributions. The Recipient is responsible for maintaining records adequate to demonstrate that costs claimed have been incurred, are reasonable, allowable, and allocable, and comply with the appropriate cost principles. Upon request, the Recipient is required to provide such records to SCEP. Such records are subject to audit. Failure to provide SCEP adequate supporting documentation may result in a determination by the Contracting Officer that those costs are unallowable.

The Recipient is required to obtain the prior written approval of the Contracting Officer for any foreign travel costs.

Term 27. Use of Program Income
If the Recipient earns program income during the project period as a result of this Award, the Recipient must add the program income to the funds committed to the Award and used to further eligible project objectives.

Term 28. Payment Procedures

A. Method of Payment
Payment will be made by reimbursement through ACH.

B. Requesting Reimbursement
Requests for reimbursements must be made electronically through Department of Energy’s Oak Ridge Financial Service Center (ORFSC) VIPERS. To access and use

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13 VIPERS, the Recipient must enroll at https://vipers.doe.gov. Detailed instructions on how to enroll are provided on the web site.

C. Timing of Submittals
Submittal of the SF-270 or SF-271 should coincide with the Recipient’s normal billing pattern, but not more frequently than every two weeks. Requests for reimbursement must be limited to the amount of disbursements made during the billing period for the federal share of direct project costs and the proportionate share of any allowable indirect costs incurred during that billing period.

D. Adjusting Payment Requests for Available Cash
The Recipient must disburse any funds that are available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries, credits, discounts, and interest earned on any of those funds before requesting additional cash payments from SCEP.

E. Payments
The SCEP approving official will approve the invoice as soon as practical, but not later than 30 days after the Recipient’s request is received, unless the billing is improper. Upon receipt of an invoice payment authorization from the SCEP approving official, the ORFSC will disburse payment to the Recipient. The Recipient may check the status of payments at the VIPERS web site. All payments are made by electronic funds transfer to the bank account specified on the Bank Information Form that the Recipient filed with the U.S. Department of Treasury.

F. Supporting Documents for Agency Approval of Payments For non-construction awards, the Recipient must submit a Standard Form SF-270, “Request for Advance or Reimbursement,” at https://vipers.doe.gov and attach a file containing appropriate supporting documentation.

The following additional items are required:
• Summary cost data, for the billing period and cumulative cost data, showing all categories listed in the SF-424A and identifying federal, non-federal, and total amounts.
• If there are unauthorized phases and/or tasks for the current budget period in the NEPA Requirements term in these Special Terms and Conditions, a statement affirming that no invoiced costs are related to tasks or activities prohibited by the NEPA Requirements term.
• Applicable to for-profit recipients and subrecipients UCC filing proof for all equipment acquired with project funds (i.e., federal share or Recipient share) and equipment offered as cost share.

The SCEP payment authorizing official may request additional information from the Recipient to support the payment requests prior to release of funds, as deemed

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

14 necessary. The Recipient is required to comply with these requests. Supporting documents include invoices, copies of contracts, contractor quotes, and other expenditure explanations that justify the reimbursement requests.

G. Unauthorized Drawdown of Federal Funds
For each budget period, the Recipient may not spend more than the federal share authorized to that particular budget period, without specific written approval from the Contracting Officer. The Recipient must immediately refund SCEP any amounts spent or drawn down in excess of the authorized amount for a budget period. The Recipient and subrecipients shall promptly, but at least quarterly, remit to DOE interest earned on advances drawn in excess of disbursement needs and shall comply with the procedure for remitting interest earned to the federal government per 2 CFR 200.305, as applicable.

Term 29. Budget Changes

A. Budget Changes Generally
The Contracting Officer has reviewed and approved the SF-424A in Attachment 3 to this Award.

Any increase in the total project cost, whether DOE share or Cost Share, which is stated as “Total” in Block 12 to the Assistance Agreement of this Award, must be approved in advance and in writing by the Contracting Officer.

Any change that alters the project scope, milestones or deliverables requires prior written approval of the Contracting Officer. SCEP may deny reimbursement for any failure to comply with the requirements in this term.

B. Transfers of Funds Among Direct Cost Categories
The Recipient is required to obtain the prior written approval of the Contracting Officer for any transfer of funds among direct cost categories where the cumulative amount of such transfers exceeds or is expected to exceed 10 percent of the total project cost, which is stated as “Total” in Block 12 to the Assistance Agreement of this Award.

The Recipient is required to notify the DOE Technology Manager/Project Officer of any transfer of funds among direct cost categories where the cumulative amount of such transfers is equal to or below 10 percent of the total project cost, which is stated as “Total” in Block 12 to the Assistance Agreement of this Award.

C. Transfer of Funds Between Direct and Indirect Cost Categories The Recipient is required to obtain the prior written approval of the Contracting Officer for any transfer of funds between direct and indirect cost categories. If the Recipient’s actual allowable indirect costs are less than those budgeted in

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15 Attachment 3 to this Award, the Recipient may use the difference to pay additional allowable direct costs during the project period so long as the total difference is less than 10% of total project costs and the difference is reflected in actual requests for reimbursement to DOE.

Subpart C. Miscellaneous Provisions

Term 30. Environmental, Safety and Health Performance of Work at DOE Facilities
With respect to the performance of any portion of the work under this Award which is performed at a DOE-owned or controlled site, the Recipient agrees to comply with all State and Federal Environmental, Safety and Health (ES&H) regulations and with all other ES&H requirements of the operator of such site.

Prior to the performance on any work at a DOE-owned or controlled site, the Recipient shall contact the site facility manager for information on DOE and site-specific ES&H requirements.

The Recipient is required apply this provision to its subrecipients and contractors.

Term 31. Insolvency, Bankruptcy or Receivership
The Recipient shall immediately, but no later than five days, notify SCEP of the occurrence of any of the following events: (1) the Recipient or the Recipient’s parent’s filing of a voluntary case seeking liquidation or reorganization under the Bankruptcy Act; (2) the Recipient’s consent to the institution of an involuntary case under the Bankruptcy Act against the Recipient or the Recipient’s parent; (3) the filing of any similar proceeding for or against the Recipient or the Recipient’s parent, or the Recipient’s consent to the dissolution, winding-up or readjustment of its debts, appointment of a receiver, conservator, trustee, or other officer with similar powers over the Recipient, under any other applicable state or federal law; or (4) the Recipient’s insolvency due to its inability to pay debts generally as they become due.

Such notification shall be in writing and shall: (1) specifically set out the details of the occurrence of an event referenced in paragraph A; (2) provide the facts surrounding that event; and (3) provide the impact such event will have on the project being funded by this Award.

Upon the occurrence of any of the four events described in paragraph A. of this term, SCEP reserves the right to conduct a review of the Recipient’s Award to determine the Recipient’s compliance with the required elements of the Award (including such items as cost share, progress towards technical project objectives, and submission of required reports). If the SCEP review determines that there are significant deficiencies or concerns with the Recipient’s performance under the Award, SCEP reserves the right to impose additional requirements, as needed, including (1) change of payment method; or (2) institute payment controls.

Failure of the Recipient to comply with this term may be considered a material noncompliance of this Award by the Contracting Officer.

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16 Term 32. Reporting Subawards and Executive Compensation

A. Reporting of first-tier subawards

i. Applicability. Unless the Recipient is exempt as provided in paragraph D. of this award term, the Recipient must report each action that equals or exceeds $30,000 in federal funds for a subaward to an entity (see definitions in paragraph E. of this award term).

ii. Where and when to report.

1. The Recipient must report each obligating action described in paragraph A.i. of this award term to https://www.fsrs.gov.

2. For subaward information, report no later than the end of the month following the month in which the obligation was made. (For example, if the obligation was made on November 7 the obligation must be reported no later than December 31.)

iii. What to report. The Recipient must report the information about each obligating action that the submission instructions posted at https://www.fsrs.gov specify.

B. Reporting Total Compensation of Recipient Executives

i. Applicability and what to report. The Recipient must report total compensation for each of its five most highly compensated executives for the preceding completed fiscal year, if:

1. The total federal funding authorized to date under this Award equals or exceeds $30,000 as defined in 2 CFR 170.320;

2. In the preceding fiscal year, the Recipient received;

a. 80 percent or more of the Recipient’s annual gross revenues from federal procurement contracts (and subcontracts) and federal financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

b. $25,000,000 or more in annual gross revenues from federal procurement contracts (and subcontracts) and federal
financial assistance subject to the Transparency Act, as

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17 defined at 2 CFR 170.320 (and subawards).

3. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/answers/execomp.htm).

ii. Where and when to report. The Recipient must report executive total compensation described in paragraph B.i. of this award term:

1. As part of the Recipient’s registration profile at https://www.sam.gov.

2. By the end of the month following the month in which this award is made, and annually thereafter.

C. Reporting of Total Compensation of Subrecipient Executives

i. Applicability and what to report. Unless the Recipient is exempt as provided in paragraph D. of this award term, for each first-tier subrecipient under this award, the Recipient shall report the names and total compensation of each of the subrecipient's five most highly compensated executives for the subrecipient's preceding completed fiscal year, if:

1. In the subrecipient's preceding fiscal year, the subrecipient received:

a. 80 percent or more of its annual gross revenues from federal procurement contracts (and subcontracts) and federal
financial assistance subject to the Transparency Act, as defined at 2 CFR 170.320 (and subawards); and

b. $25,000,000 or more in annual gross revenues from federal procurement contracts (and subcontracts), and federal
financial assistance subject to the Transparency Act (and subawards).

2. The public does not have access to information about the compensation of the executives through periodic reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the compensation information, see the U.S. Security and Exchange Commission total

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18 compensation filings at http://www.sec.gov/answers/execomp.htm).

ii. Where and when to report. The Recipient must report subrecipient executive total compensation described in paragraph C.i. of this award term:

1. To the recipient.

2. By the end of the month following the month during which the Recipient makes the subaward. For example, if a subaward is obligated on any date during the month of October of a given year (i.e., between October 1 and 31), the Recipient must report any required compensation information of the subrecipient by November 30 of that year.

D. Exemptions
If, in the previous tax year, the Recipient had gross income, from all sources, under $300,000, it is exempt from the requirements to report:

i. Subawards; and

ii. The total compensation of the five most highly compensated executives of any subrecipient.

E. Definitions
For purposes of this Award term:

i. Entity means all of the following, as defined in 2 CFR Part 25:

1. A Governmental organization, which is a State, local government, or Indian tribe.

2. A foreign public entity.

3. A domestic or foreign nonprofit organization.

4. A domestic or foreign for-profit organization.

5. A federal agency, but only as a subrecipient under an award or subaward to a non-federal entity.

ii. Executive means officers, managing partners, or any other employees in management positions.

iii. Subaward:

1. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which the Recipient received this award and that the recipient awards

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19 to an eligible subrecipient.

2. The term does not include the Recipient’s procurement of property and services needed to carry out the project or program (for further explanation, see 2 CFR 200.501 Audit requirements, (f) Subrecipients and Contractors and/or 2 CFR 910.501 Audit requirements, (f) Subrecipients and Contractors).

3. A subaward may be provided through any legal agreement, including an agreement that the Recipient or a subrecipient considers a contract.

iv. Subrecipient means an entity that:

1. Receives a subaward from the Recipient under this award; and

2. Is accountable to the Recipient for the use of the federal funds provided by the subaward.

v. Total compensation means the cash and noncash dollar value earned by the executive during the recipient's or subrecipient's preceding fiscal year and includes the following (for more information see 17 CFR 229.402(c)(2)):

1. Salary and bonus.

2. Awards of stock, stock options, and stock appreciation rights. Use the dollar amount recognized for financial statement reporting purposes with respect to the fiscal year in accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS 123R), Shared Based Payments.

3. Earnings for services under non-equity incentive plans. This does not include group life, health, hospitalization or medical reimbursement plans that do not discriminate in favor of executives and are available generally to all salaried employees.

4. Change in pension value. This is the change in present value of defined benefit and actuarial pension plans.

5. Above-market earnings on deferred compensation which is not tax- qualified.

6. Other compensation, if the aggregate value of all such other compensation (e.g., severance, termination payments, value of life

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20 insurance paid on behalf of the employee, perquisites or property) for the executive exceeds $10,000.

Term 33. System for Award Management and Universal Identifier Requirements

A. Requirement for Registration in the System for Award Management (SAM) Unless the Recipient is exempted from this requirement under 2 CFR 25.110, the Recipient must maintain the currency of its information in SAM until the Recipient submits the final financial report required under this Award or receive the final payment, whichever is later. This requires that the Recipient reviews and updates the information at least annually after the initial registration, and more frequently if required by changes in its information or another award term.

B. Unique Entity Identifier (UEI)
SAM automatically assigns a UEI to all active SAM.gov registered entities. Entities no longer have to go to a third-party website to obtain their identifier. This information is displayed on SAM.gov.

If the Recipient is authorized to make subawards under this Award, the Recipient:

i. Must notify potential subrecipients that no entity (see definition in paragraph C of this award term) may receive a subaward from the Recipient unless the entity has provided its UEI number to the Recipient.

ii. May not make a subaward to an entity unless the entity has provided its UEI number to the Recipient.

C. Definitions
For purposes of this award term:

i. System for Award Management (SAM) means the federal repository into which an entity must provide information required for the conduct of business as a recipient. Additional information about registration procedures may be found at the SAM Internet site (currently at https://www.sam.gov).

ii. Unique Entity Identifier (UEI) is the 12-character, alpha-numeric identifier that will be assigned by SAM.gov upon registration.

iii. Entity, as it is used in this award term, means all of the following, as defined at 2 CFR Part 25, subpart C:

1. A Governmental organization, which is a State, local government, or Indian Tribe.

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21 2. A foreign public entity.

3. A domestic or foreign nonprofit organization.

4. A domestic or foreign for-profit organization.

5. A federal agency, but only as a subrecipient under an award or subaward to a non-federal entity.

iv. Subaward:

1. This term means a legal instrument to provide support for the performance of any portion of the substantive project or program for which the Recipient received this Award and that the Recipient awards to an eligible subrecipient.

2. The term does not include the Recipient’s procurement of property and services needed to carry out the project or program (for further explanation, see 2 CFR 200.501 Audit requirements, (f) Subrecipients and Contractors and/or 2 CFR 910.501 Audit requirements, (f) Subrecipients and Contractors).

3. A subaward may be provided through any legal agreement, including an agreement that the Recipient considers a contract.

v. Subrecipient means an entity that:

1. Receives a subaward from the Recipient under this Award; and

2. Is accountable to the Recipient for the use of the federal funds provided by the subaward.

Term 34. Nondisclosure and Confidentiality Agreements Assurances

A. By entering into this agreement, the Recipient attests that it does not and will not require its employees or contractors to sign internal nondisclosure or confidentiality agreements or statements prohibiting or otherwise restricting its employees or contractors from lawfully reporting waste, fraud, or abuse to a designated investigative or law enforcement representative of a federal department or agency authorized to receive such information.

B. The Recipient further attests that it does not and will not use any federal funds to implement or enforce any nondisclosure and/or confidentiality policy, form, or agreement it uses unless it contains the following provisions:

i. ‘‘These provisions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statute or Executive order relating to (1) classified information, (2)

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22 communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this agreement and are controlling.’’

ii. The limitation above shall not contravene requirements applicable to Standard Form 312, Form 4414, or any other form issued by a federal department or agency governing the nondisclosure of classified information.

iii. Notwithstanding provision listed in paragraph (a), a nondisclosure or confidentiality policy form or agreement that is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than an employee or officer of the United States Government, may contain provisions appropriate to the particular activity for which such document is to be used. Such form or agreement shall, at a minimum, require that the person will not disclose any classified information received in the course of such activity unless specifically authorized to do so by the United States Government. Such nondisclosure or confidentiality forms shall also make it clear that they do not bar disclosures to Congress, or to an authorized official of an executive agency or the Department of Justice, that are essential to reporting a substantial violation of law.

Term 35. Subrecipient and Contractor Approvals

A. At Risk Notice. The Recipient must obtain written approval by the Contracting Officer for reimbursement of costs associated with
subrecipients/activities/contractor listed in paragraph B. below. The Recipient is restricted from expending project funds (i.e., federal share and Recipient share) on the subrecipients’ and/or contractors’ supporting the tasks identified in paragraph B. below unless and until the Contracting Officer provides written approval. At its discretion, SCEP may not reimburse costs incurred prior to the date of any such written approval by the Contracting Officer.

B. Contracting Officer approval as set out above is required for the following:

Task # Activity and Subrecipients / Contractor Total Amount ($)

The Contracting Officer may require additional information concerning these tasks prior to providing written approval.

C. Upon written approval by the Contracting Officer, the Recipient may then receive

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23 payment for the tasks identified in paragraph B. above for allowable costs incurred, or SCEP will recognize costs incurred toward cost share requirements, if any, in accordance with the payment provisions contained in the Special Terms and Conditions of this agreement.

Term 36. Subrecipient Change Notification
Except for subrecipients specifically proposed as part of the Recipient’s Application for award, the Recipient must notify the Contracting Officer and Project Manager in writing 30 days prior to the execution of new or modified subrecipient agreements, including naming any To Be Determined subrecipients. This notification does not constitute a waiver of the prior approval requirements outlined in 2 CFR Part 200 as amended by 2 CFR Part 910, nor does it relieve the Recipient from its obligation to comply with applicable federal statutes, regulations, and executive orders.

In order to satisfy this notification requirement, the Recipient documentation must, at a minimum, include the following:

• A description of the research to be performed, the service to be provided, or the equipment to be purchased.
• Cost share commitment letter if the subrecipient is providing cost share to the Award. • An assurance that the process undertaken by the Recipient to solicit the subrecipient complies with their written procurement procedures as outlined in 2 CFR 200.317 through 200.327.
• An assurance that no planned, actual or apparent conflict of interest exists between the Recipient and the selected subrecipient and that the Recipient’s written standards of conduct were followed.1
• A completed Environmental Questionnaire, if applicable. • An assurance that the subrecipient is not a debarred or suspended entity. • An assurance that all required award provisions will be flowed down in the resulting subrecipient agreement.

The Recipient is responsible for making a final determination to award or modify subrecipient agreements under this agreement, but the Recipient may not proceed with the subrecipient agreement until the Contracting Officer determines, and provides the Recipient written notification, that the information provided is adequate.

1 It is DOE’s position that the existence of a “covered relationship” as defined in 5 CFR 2635.502(a)&(b) between a member of the Recipient’s owners or senior management and a member of a subrecipient’s owners or senior management creates at a minimum an apparent conflict of interest that would require the Recipient to notify the Contracting Officer and provide detailed information and justification (including, for example, mitigation measures) as to why the subrecipient agreement does not create an actual conflict of interest. The Recipient must also notify the Contracting Officer of any new subrecipient agreement with: (1) an entity that is owned or otherwise controlled by the Recipient; or (2) an entity that is owned or otherwise controlled by another entity that also owns or otherwise controls the Recipient, as it is DOE’s position that these situations also create at a minimum an apparent conflict of interest.

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24 Should the Recipient not receive a written notification of adequacy from the Contracting Officer within 30 days of the submission of the subrecipient documentation stipulated above, the Recipient may proceed to award or modify the proposed subrecipient agreement.

Term 37. Conference Spending
The Recipient shall not expend any funds on a conference not directly and programmatically related to the purpose for which the grant or cooperative agreement was awarded that would defray the cost to the United States Government of a conference held by any Executive branch department, agency, board, commission, or office for which the cost to the United States Government would otherwise exceed $20,000, thereby circumventing the required notification by the head of any such Executive Branch department, agency, board, commission, or office to the Inspector General (or senior ethics official for any entity without an Inspector General), of the date, location, and number of employees attending such conference.

Term 38. Recipient Integrity and Performance Matters

A. General Reporting Requirement
If the total value of your currently active Financial Assistance awards, cooperative agreements, and procurement contracts from all federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of this federal award, then you as the recipient during that period of time must maintain the currency of information reported to the System for Award Management (SAM) that is made available in the designated integrity and performance system (currently the Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal, or administrative proceedings described in paragraph 2 of this term. This is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313). As required by section 3010 of Public Law 111-212, all information posted in the designated integrity and performance system on or after April 15, 2011, except past performance reviews required for federal procurement contracts, will be publicly available.

B. Proceedings About Which You Must Report
Submit the information required about each proceeding that:
i. Is in connection with the award or performance of a Financial Assistance, cooperative agreement, or procurement contract from the federal government;
ii. Reached its final disposition during the most recent five-year period; and iii. Is one of the following:

1. A criminal proceeding that resulted in a conviction, as defined in paragraph E of this award term and condition;

2. A civil proceeding that resulted in a finding of fault and liability and payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more;

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25 3. An administrative proceeding, as defined in paragraph E of this term, that resulted in a finding of fault and liability and your payment of either a monetary fine or penalty of $5,000 or more or
reimbursement, restitution, or damages in excess of $100,000; or

4. Any other criminal, civil, or administrative proceeding if:
a. It could have led to an outcome described in paragraph B.iii.1, 2, or 3 of this term;
b. It had a different disposition arrived at by consent or compromise with an acknowledgment of fault on your part; and
c. The requirement in this term to disclose information about the proceeding does not conflict with applicable laws and regulations.

C. Reporting Procedures
Enter in the SAM Entity Management area the information that SAM requires about each proceeding described in paragraph B of this term. You do not need to submit the information a second time under assistance awards that you received if you already provided the information through SAM because you were required to do so under federal procurement contracts that you were awarded.

D. Reporting Frequency
During any period of time when you are subject to the requirement in paragraph A of this term, you must report proceedings information through SAM for the most recent five-year period, either to report new information about any proceeding(s) that you have not reported previously or affirm that there is no new information to report. Recipients that have federal contract, Financial Assistance awards, (including cooperative agreement awards) with a cumulative total value greater than $10,000,000, must disclose semiannually any information about the criminal, civil, and administrative proceedings.

E. Definitions
For purposes of this term:
i. Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed Services Board of Contract Appeals proceedings). This includes proceedings at the federal and state level but only in connection with performance of a federal contract or Financial Assistance awards. It does not include audits, site visits, corrective plans, or inspection of deliverables.
ii. Conviction means a judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere.

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26 iii. Total value of currently active Financial Assistance awards, cooperative agreements and procurement contracts includes:

1. Only the Federal share of the funding under any Federal award with a recipient cost share or match; and

2. The value of all expected funding increments under a federal award and options, even if not yet exercised.

Term 39. Export Control
The United States government regulates the transfer of information, commodities, technology, and software considered to be strategically important to the U.S. to protect national security, foreign policy, and economic interests without imposing undue regulatory burdens on legitimate international trade. There is a network of federal agencies and regulations that govern exports that are collectively referred to as “Export Controls.”

The Recipient is responsible for ensuring compliance with all applicable United States Export Control laws and regulations relating to any work performed under a resulting award.

The Recipient must immediately report to DOE any export control violations related to the project funded under this Award, at the recipient or subrecipient level, and provide the corrective action(s) to prevent future violations.

Term 40. Current and Pending Support

A. Definitions
For purposes of this term, the following definitions are applicable:

i. Current and pending support – (a) All resources made available, or expected to be made available, to an individual in support of the individual’s RD&D efforts, regardless of (i) whether the source is foreign or domestic; (ii) whether the resource is made available through the entity applying for an award or directly to the individual; or (iii) whether the resource has monetary value; and (b) includes in-kind contributions requiring a commitment of time and directly supporting the individual’s RD&D efforts, such as the provision of office or laboratory space, equipment, supplies, employees, or students. This term has the same meaning as the term Other Support as applied to researchers in NSPM-33: For researchers, Other Support includes all resources made available to a researcher in support of and/or related to all of their professional RD&D efforts, including resources provided directly to the individual or through the organization, and regardless of whether or not they have monetary value (e.g., even if the support received is only in-kind, such as office/laboratory space, equipment, supplies, or employees). This includes resource and/or financial support from all foreign and domestic entities, including but not limited to, gifts provided with terms or conditions, financial support for laboratory personnel, and

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27 participation of student and visiting researchers supported by other sources of funding.

ii. Foreign Government-Sponsored Talent Recruitment Program – An effort directly or indirectly organized, managed, or funded by a foreign government, or a foreign government instrumentality or entity, to recruit science and technology professionals or students (regardless of citizenship or national origin, or whether having a full-time or part-time position). Some foreign government-sponsored talent recruitment programs operate with the intent to import or otherwise acquire from abroad, sometimes through illicit means, proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to relocate physically to the foreign state for the above purpose. Some programs allow for or encourage continued employment at United States research facilities or receipt of federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to United States entities.

Compensation could take many forms including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.

iii. Senior/key personnel – an individual who contributes in a substantive, meaningful way to the scientific development or execution of a research, development, and demonstration (RD&D) project proposed to be carried out with DOE award.2

B. Disclosure Requirements
Prior to award, the Recipient was required to provide current and pending support disclosure statements and a Curriculum Vitae (CV) or Biosketch for each principal investigator (PI) and senior/key personnel, at the recipient and subrecipient level, regardless of funding source. In accordance with the Federal Assistance Reporting Checklist, throughout the life of the award, the Recipient must submit current and pending support disclosure statements and a CV or Biosketch for any new PI and senior/key personnel at the recipient and subrecipient level, added to the project funded under this Award within thirty (30) calendar days of the individual joining the project. In addition, if there are any changes to current and pending support disclosure

2 Typically, these individuals have doctoral or other professional degrees, although individuals at the masters or baccalaureate level may be considered senior/key personnel if their involvement meets this definition. Consultants , graduate students, and those with a postdoctoral role also may be considered senior/key personnel if they meet this definition.

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28 statements previously submitted to DOE, the Recipient must submit updated current and pending disclosure statements within thirty (30) calendar days of the change. The Recipient must ensure all PIs and senior/key personnel at the recipient and subrecipient level, are aware of the requirement to submit updated current and pending support disclosure statements to DOE.

Current and pending support is intended to allow the identification of potential duplication, overcommitment, potential conflicts of interest or commitment, and all other sources of support. All PIs and senior/key personnel at the recipient and subrecipient level must provide a list of all sponsored activities, awards, and appointments, whether paid or unpaid; provided as a gift with terms or conditions or provided as a gift without terms or conditions; full-time, part-time, or voluntary; faculty, visiting, adjunct, or honorary; cash or in-kind; foreign or domestic; governmental or private-sector; directly supporting the individual’s research or indirectly supporting the individual by supporting students, research staff, space, equipment, or other research expenses. All involvement with foreign government-sponsored talent recruitment programs must be identified in current and pending support.

For every activity, list the following items:
• The sponsor of the activity or the source of funding. • The award or other identifying number.
• The title of the award or activity. If the title of the award or activity is not descriptive, add a brief description of the research being performed that would identify any overlaps or synergies with the proposed research. • The total cost or value of the award or activity, including direct and indirect costs and cost share. For pending proposals, provide the total amount of requested funding.
• The award period (start date – end date).
• The person-months of effort per year being dedicated to the award or activity.

To identify overlap, duplication of effort, or synergistic efforts, append a description of the other award or activity to the current and pending support.

Details of any obligations, contractual or otherwise, to any program, entity, or organization sponsored by a foreign government must be provided to DOE upon request to either the applicant institution or DOE. Supporting documents of any identified source of support must be provided to DOE on request, including certified translations of any document.

The information may be provided in the format approved by the National Science Foundation (NSF), which may be generated by the Science Experts Network Curriculum Vita (SciENcv), a cooperative venture maintained at
https://www.ncbi.nlm.nih.gov/sciencv/, and is also available at https://www.nsf.gov/bfa/dias/policy/nsfapprovedformats/cps.pdf. The use of a format

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29 required by another agency is intended to reduce the administrative burden to researchers by promoting the use of common formats. Currently, the federal research agencies, including DOE, are working on a common disclosure form for current and pending support. At such time that the common disclosure form is published for use, the information may be provided in the common form.

Each PI and senior/key personnel must provide a separate disclosure statement listing the required information above regarding current and pending support. The individual must sign and date their respective disclosure statement and include the following certification statement:

I, [Full Name and Title], certify to the best of my knowledge and belief that the information contained in this Current and Pending Support Disclosure Statement is true, complete and accurate. I understand that any false, fictitious, or fraudulent information, misrepresentations, half- truths, or omissions of any material fact, may subject me to criminal, civil or administrative penalties for fraud, false statements, false claims or otherwise. (18 U.S.C. §§ 1001 and 287, and 31 U.S.C. 3729-3733 and 3801-3812). I further understand and agree that (1) the statements and representations made herein are material to DOE’s funding decision, and (2) I have a responsibility to update the disclosures during the period of performance of the award should circumstances change which impact the responses provided above.

If the NSF format is used, the individual must still include a signature, date, and a certification statement using the language included in the paragraph above. If the online version is used in SciENcv, a signature, date, and a certification statement must be attached until the SciENcv website automatically attaches a certification statement.

Term 41. Interim Conflict of Interest Policy for Financial Assistance The DOE interim Conflict of Interest Policy for Financial Assistance (COI Policy) can be found at https://www.energy.gov/management/department-energy-interim-conflict-interest-policy- requirements-financial-assistance. This policy is applicable to all non-federal entities applying for, or that receive, DOE funding by means of a financial assistance award (e.g., a grant, cooperative agreement, or technology investment agreement) and, through the implementation of this policy by the entity, to each Investigator who is planning to participate in, or is participating in, the project funded wholly or in part under this Award. The term “Investigator” means the PI and any other person, regardless of title or position, who is responsible for the purpose, design, conduct, or reporting of a project funded by DOE or proposed for funding by DOE.

The Recipient must flow down the requirements of the interim COI Policy to any subrecipient non-federal entities, with the exception of DOE National Laboratories. Further, the Recipient

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30 must identify all financial conflicts of interests (FCOI), i.e., managed and unmanaged/unmanageable, in its initial and ongoing FCOI reports.

Prior to award, the Recipient was required to: 1) ensure all Investigators on this Award completed their significant financial disclosures; 2) review the disclosures; 3) determine whether a FCOI exists; 4) develop and implement a management plan for FCOIs; and 5) provide DOE with an initial FCOI report that includes all FCOIs (i.e., managed and unmanaged/unmanageable). Within 180 days of the date of the Award, the Recipient must be in full compliance with the other requirements set forth in DOE’s interim COI Policy.

Term 42. Organizational Conflict of Interest
Organizational conflicts of interest are those where, because of relationships with a parent company, affiliate, or subsidiary organization, the Recipient is unable or appears to be unable to be impartial in conducting procurement action involving a related organization (2 CFR 200.318(c)(2)).

The Recipient must disclose in writing any potential or actual organizational conflict of interest to the DOE Contracting Officer. The Recipient must provide the disclosure prior to engaging in a procurement or transaction using project funds with a parent, affiliate, or subsidiary organization that is not a state, local government, or Indian tribe. For a list of the information that must be included the disclosure, see Section VI. of the DOE interim Conflict of Interest Policy for Financial Assistance at https://www.energy.gov/management/department-energy- interim-conflict-interest-policy-requirements-financial-assistance.

If the effects of the potential or actual organizational conflict of interest cannot be avoided, neutralized, or mitigated, the Recipient must procure goods and services from other sources when using project funds. Otherwise, DOE may terminate the Award in accordance with 2 CFR 200.340 unless continued performance is determined to be in the best interest of the federal government.

The Recipient must flow down the requirements of the interim COI Policy to any subrecipient non-federal entities, with the exception of DOE National Laboratories. The Recipient is responsible for ensuring subrecipient compliance with this term.

If the Recipient has a parent, affiliate, or subsidiary organization that is not a state, local government, or Indian tribe, the Recipient must maintain written standards of conduct covering organizational conflicts of interest.

Term 43. Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment
As set forth in 2 CFR 200.216, recipients and subrecipients are prohibited from obligating or expending project funds (federal and non-federal funds) to:
(1) Procure or obtain;

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31 (2) Extend or renew a contract to procure or obtain; or (3) Enter into a contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. As described in Public Law 115-232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities). (i) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). (ii) Telecommunications or video surveillance services provided by such entities or using such equipment.
(iii) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.

See Public Law 115-232, section 889 for additional information.

Term 44. Participants and Other Collaborating Organizations Prior to award, the Recipient was required to provide the following information on participants and other collaborating organizations. If there are any changes to Participants and Collaborating Organizations information previously submitted to DOE, the Recipient must submit updated information within thirty (30) calendar days after the end of the quarterly reporting period in which the change occurred:

A. What individuals have worked on the project
Provide the following information for individuals at the prime recipient and subrecipient level: (1) all senior and key personnel; and (2) each person who has worked or is expected to work at least one person month per year on the project regardless of the source of compensation (a person month equals approximately 160 hours of effort).

i. Name
ii. Organization
iii. Job Title
iv. Role in the project
v. Start and end date (month and year) working on the project

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32 vi. State, U.S. territory, and/or country of residence vii. Whether this person collaborated with an individual or entity located in a foreign country in connection with the scope of this Award, and viii. If yes to vii, whether the person traveled to the foreign country as part of that collaboration, and, if so, where and what the duration of stay was.

B. Organizations
Identify all subrecipients, contractors, U.S. National Laboratories, partners, and collaborating organizations. Recipients must also include all foreign collaborators as outlined in the Foreign Collaboration Considerations term of the award Terms and Conditions. For each, provide name, UEI, zip code or latitude/longitude, role in the project, contribution to the project, and start and end date.

Term 45. Human Subjects Research
Research involving human subjects, biospecimens, or identifiable private information conducted with Department of Energy (DOE) funding is subject to the requirements of DOE Order 443.1C, Protection of Human Research Subjects, 45 CFR Part 46, Protection of Human Subjects (subpart A which is referred to as the “Common Rule”), and 10 CFR Part 745, Protection of Human Subjects.

Federal regulation and the DOE Order require review by an Institutional Review Board (IRB) of all proposed human subjects research projects. The IRB is an interdisciplinary ethics board responsible for ensuring that the proposed research is sound and justifies the use of human subjects or their data; the potential risks to human subjects have been minimized; participation is voluntary; and clear and accurate information about the study, the benefits and risks of participating, and how individuals’ data/specimens will be protected/used, is provided to potential participants for their use in determining whether or not to participate.

The Recipient shall provide the Federal Wide Assurance number identified in item 1 below and the certification identified in item 2 below to DOE prior to initiation of any project that will involve interactions with humans in some way (e.g., through surveys); analysis of their identifiable data (e.g., demographic data and energy use over time); asking individuals to test devices, products, or materials developed through research; and/or testing of commercially available devices in buildings/homes in which humans will be present. Note: This list of examples is illustrative and not all inclusive.

No DOE funded research activity involving human subjects, biospecimens, or identifiable private information shall be conducted without:

1) A registration and a Federal Wide Assurance of compliance accepted by the Office of Human Research Protection (OHRP) in the Department of Health and Human Services; and
2) Certification that the research has been reviewed and approved by an Institutional Review Board (IRB) provided for in the assurance. IRB review may be accomplished by

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33 the awardee’s institutional IRB; by the Central DOE IRB; or if collaborating with one of the DOE national laboratories, by the DOE national laboratory IRB.

The Recipient is responsible for ensuring all subrecipients comply and for reporting information on the project annually to the DOE Human Subjects Research Database (HSRD) at https://science.osti.gov/HumanSubjects/Human-Subjects-Database/home. Note: If a DOE IRB is used, no end of year reporting will be needed.

Additional information on the DOE Human Subjects Research Program can be found at:
https://science.osti.gov/ber/human-subjects.

Term 46. Fraud, Waste and Abuse
The mission of the DOE Office of Inspector General (OIG) is to strengthen the integrity, economy and efficiency of DOE’s programs and operations including deterring and detecting fraud, waste, abuse, and mismanagement. The OIG accomplishes this mission primarily through investigations, audits, and inspections of Department of Energy activities to include grants, cooperative agreements, loans, and contracts. The OIG maintains a Hotline for reporting allegations of fraud, waste, abuse, or mismanagement. To report such allegations, please visit https://www.energy.gov/ig/ig‐hotline.

Additionally, the Recipient must be cognizant of the requirements of 2 CFR 200.113 Mandatory disclosures, which states:

The non‐federal entity or applicant for a federal award must disclose, in a timely manner, in writing to the federal awarding agency or pass‐through entity all violations of federal criminal law involving fraud, bribery, or gratuity violations potentially affecting the federal award. Non‐federal entities that have received a federal award including the term and condition outlined in appendix XII of 2 CFR Part 200 are required to report certain civil, criminal, or administrative proceedings to SAM (currently FAPIIS). Failure to make required disclosures can result in any of the remedies described in § 200.339. (See also 2 CFR part 180, 31 U.S.C. 3321, and 41 U.S.C. 2313.)

Term 47. Buy America Requirement for Infrastructure Projects

A. Definitions

Components See 2 CFR 184.3 “Definitions.”

Construction Materials See 2 CFR 184.3 “Definitions.”

Buy America Preference, Buy America Requirement, or Domestic Content Procurement Preference Requirement means a requirement that no amount of funds made available

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34 through a program for federal financial assistance may be obligated for an infrastructure project unless—
(A) all iron and steel used in the project are produced in the United States; (B) the manufactured products used in the project are produced in the United States; or
(C) the construction materials used in the project are produced in the United States.

Infrastructure See 2 CFR 184.4 (c) and (d).

Manufactured Products See 2 CFR 184.3 “Definitions.”

Predominantly of iron or steel See 2 CFR 184.3 “Definitions."

Infrastructure project See 2 CFR 184.3 Definitions

Public- The Buy America Requirement does not apply to non-public infrastructure. For purposes of this guidance, infrastructure should be considered “public” if it is: (1) publicly owned or (2) privately owned but utilized primarily for a public purpose. Infrastructure should be considered to be “utilized primarily for a public purpose” if it is privately operated on behalf of the public or is a place of public accommodation.

B. Buy America Requirement

None of the funds provided under this award (federal share or recipient cost-share) may be used for a project for infrastructure unless:

1. All iron and steel used in the project is produced in the United States— this means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States;

2. All manufactured products used in the project are produced in the United States—this means the manufactured product was manufactured in the United States; and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation. See 2 CFR 184.5 for determining the cost of components for manufactured products; and

3. All construction materials are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States. See 2 CFR 184.6 for construction material standards.

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35 The Buy America Requirement only applies to those articles, materials, and supplies that are consumed in, incorporated into, or permanently affixed to the infrastructure in the project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought into the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America Requirement apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of the structure or permanently affixed to the infrastructure project.

The Buy America Requirement only applies to an article, material, or supply classified into one of the following categories* based on its status at the time it is brought to the work site for incorporation into an infrastructure project:

(i) Iron or steel products;
(ii) Manufactured products; or
(iii) Construction materials;

The Buy America Requirement only applies to the iron or steel products, manufactured products, and construction materials used for the construction, alteration, maintenance, or repair of public infrastructure in the United States when those items are consumed in, incorporated into, or permanently affixed to the infrastructure. An article, material, or supply incorporated into an infrastructure project should not be considered to fall into multiple categories, but rather must meet the Buy America Preference Requirement for only the single category in which it is classified.

All iron and steel, manufactured products, and construction materials used in the infrastructure project must be produced in the United States.

* Section 70917(c) of the Build America, Buy America Act states that “construction materials” do not include cement and cementitious materials; aggregates such as stone, sand, or gravel; or aggregate binding agents or additives. Section 70917(c) materials are excluded from Construction materials. Asphalt concrete pavement mixes are typically composed of asphalt cement (a binding agent) and aggregates such as stone, sand, and gravel. Accordingly, asphalt is also excluded from the definition of Construction materials.

Section 70917(c) materials, on their own, are not manufactured products. Further, Section 70917(c) materials should not be considered manufactured products when they are used at or combined proximate to the work site—such as is the case with wet concrete or hot mix asphalt brought to the work site for incorporation. However, when certain Section 70917(c) materials (such as stone, sand, and gravel) are used to produce a manufactured product, such as is precast concrete processed into a specific shape or form, and is in such state when brought to the work site, then that product is subject to the BABA requirements.

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36 Further clarification is provided in 2 CFR 184 on the circumstances under which a determination is made that Section 70917(c) materials should be treated as components of a manufactured product. That determination is based on consideration of: (i) the revised definition of the “manufactured products” at 2 CFR 184.3; (ii) a new definition of “section 70917(c) materials” at 2 CFR 184.3; (iii) new instructions at 2 CFR 184.4(e) on how and when to categorize articles, materials, and supplies; and (iv) new instructions at 2 CFR 184.4(f) on how to apply the Buy America preference by category.

Recipients are responsible for administering their award in accordance with the terms and conditions, including the Buy America Requirement. The recipient must ensure that the Buy America Requirement flows down to all subawards and that the subawardees and subrecipients comply with the Buy America Requirement. The Buy America Requirement term and condition must be included all sub-awards, contracts, subcontracts, and purchase orders for work performed under the infrastructure project.

C. Certification of Compliance
Recipients must certify or provide equivalent documentation for proof of compliance that a good faith effort was made to solicit bids for domestic products used in the infrastructure project under this award.

Recipients must also maintain certifications or equivalent documentation for proof of compliance that those articles, materials, and supplies that are consumed in, incorporated into, affixed to, or otherwise used in the infrastructure project, not covered by a waiver or exemption, are produced in the United States. The certification or proof of compliance must be provided by the suppliers or manufacturers of the iron, steel, manufactured products and construction materials and flow up from all subawardees, contractors and vendors to the recipient. Recipients must keep these certifications with the award/project files and be able to produce them upon request from DOE, auditors or Office of Inspector General.

D. Waivers
When necessary, recipients may apply for, and DOE may grant, a waiver from the Buy America Requirement. Requests to waive the application of the Buy America Requirement must be in writing to the CO. Waiver requests are subject to review by DOE and the Office of Management and Budget, as well as a public comment period of no less than 15 calendar days.

1. Waivers must be based on one of the following justifications:
a) Public Interest- Applying the Buy America Requirement would be inconsistent with the public interest;
b) Non-Availability- The types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or
c) Unreasonable Cost- The inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent.

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37 2. Requests to waive the Buy America Requirement must include the following:
• Waiver type (Public Interest, Non-Availability, or Unreasonable Cost); • Recipient name and Unique Entity Identifier (UEI);
• Award information (Federal Award Identification Number, Assistance Listing number);
• A brief description of the project, its location, and the specific infrastructure involved;
• Total estimated project cost, with estimated federal share and recipient cost share breakdowns;
• Total estimated infrastructure costs, with estimated federal share and recipient cost share breakdowns;
• List and description of iron or steel item(s), manufactured goods, and/or construction material(s) the recipient seeks to waive from the Buy America Preference, including name, cost, quantity(ies), country(ies) of origin, and relevant Product Service Codes (PSC) and North American Industry Classification System (NAICS) codes for each;
• A detailed justification as to how the non-domestic item(s) is/are essential the project;
• A certification that the recipient made a good faith effort to solicit bids for domestic products supported by terms included in requests for proposals, contracts, and non- proprietary communications with potential suppliers;
• A justification statement—based on one of the applicable justifications outlined above—as to why the listed items cannot be procured domestically, including the due diligence performed (e.g., market research, industry outreach, cost analysis, cost-benefit analysis) by the recipient to attempt to avoid the need for a waiver. This justification may cite, if applicable, the absence of any Buy America-compliant bids received for domestic products in response to a solicitation; • A description of the market research conducted that includes who conducted the market research, when it was conducted, sources that were used, and the methods used to conduct the research; and

3. How to submit a waiver
Requests to waive the application of the Buy America Requirement must be in writing to the CO.

DOE may request, and the recipient must provide, additional information for consideration of this wavier. DOE may reject or grant waivers in whole or in part depending on its review, analysis, and/or feedback from OMB or the public. DOE’s final determination regarding approval or rejection of the waiver request may not be appealed. Waiver requests may take up to 90 calendar days to process.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

38 Term 48. Prohibition related to Foreign Government-Sponsored Talent Recruitment Programs

a. Prohibition
Persons participating in a Foreign Government-Sponsored Talent Recruitment Program of a Foreign Country of Risk are prohibited from participating in this Award.

The recipient must exercise ongoing due diligence to reasonably ensure that no individuals participating on the DOE-funded project are participating in a Foreign Government- Sponsored Talent Recruitment Program of a Foreign Country of Risk. Consequences for violations of this prohibition will be determined according to applicable law, regulations, and policy. Further, the recipient must notify DOE within five (5) business days upon learning that an owner of the recipient or subrecipient or individual on the project team is or is believed to be participating in a Foreign Government-Sponsored Talent Recruitment Program of a Foreign Country of Risk. DOE may modify and add requirements related to this prohibition to the extent required by law.

b. Definitions

1. Foreign Government-Sponsored Talent Recruitment Program.

An effort directly or indirectly organized, managed, or funded by a foreign government, or a foreign government instrumentality or entity, to recruit science and technology professionals or students (regardless of citizenship or national origin, or whether having a full-time or part-time position). Some foreign government-sponsored talent recruitment programs operate with the intent to import or otherwise acquire from abroad, sometimes through illicit means, proprietary technology or software, unpublished data and methods, and intellectual property to further the military modernization goals and/or economic goals of a foreign government. Many, but not all, programs aim to incentivize the targeted individual to relocate physically to the foreign state for the above purpose. Some programs allow for or encourage continued employment at United States research facilities or receipt of federal research funds while concurrently working at and/or receiving compensation from a foreign institution, and some direct participants not to disclose their participation to U.S. entities.

Compensation could take many forms including cash, research funding, complimentary foreign travel, honorific titles, career advancement opportunities, promised future compensation, or other types of remuneration or consideration, including in-kind compensation.

2. Foreign Country of Risk.

DOE has designated the following countries as foreign countries of risk: Iran, North Korea, Russia, and China. This list is subject to change.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

39 Term 49. Affirmative Action and Pay Transparency Requirements All federally assisted construction contracts exceeding $10,000 annually will be subject to the requirements of Executive Order 11246:

1. Recipients, subrecipients, and contractors are prohibited from discriminating in employment decisions on the basis of race, color, religion, sex, sexual orientation, gender identity or national origin.

2. Recipients and Contractors are required to take affirmative action to ensure that equal opportunity is provided in all aspects of their employment. This includes flowing down the appropriate language to all subrecipients, contractors and subcontractors.

3. Recipients, subrecipients, contractors and subcontractors are prohibited from taking adverse employment actions against applicants and employees for asking about, discussing, or sharing information about their pay or, under certain circumstances, the pay of their co‐workers.

The Department of Labor’s (DOL) Office of Federal Contractor Compliance Programs (OFCCP) uses a neutral process to schedule contractors for compliance evaluations. OFCCP’s Technical Assistance Guide should be consulted to gain an understanding of the requirements and possible actions the recipients, subrecipients, contractors, and subcontractors must take. See OFCCP’s Technical Assistance Guide at:
https://www.dol.gov/sites/dolgov/files/ofccp/Construction/files/ConstructionTAG.pdf?msclkid =9e397d68c4b111ec9d8e6fecb6c710ec.

Term 50. Potentially Duplicative Funding Notice
If the recipient or subrecipients have or receive any other award of federal funds for activities that potentially overlap with the activities funded under this Award, the recipient must promptly notify DOE in writing of the potential overlap and state whether project funds (i.e., recipient cost share and federal funds) from any of those other federal awards have been, are being, or are to be used (in whole or in part) for one or more of the identical cost items under this Award. If there are identical cost items, the recipient must promptly notify the DOE Grants Officer in writing of the potential duplication and eliminate any inappropriate duplication of funding.

Term 51. Transparency of Foreign Connections
The recipient must notify the DOE Grants Officer within fifteen (15) business days of learning of the circumstances listed below in relation to the recipient and subrecipients.

U.S. National Laboratories, domestic government entities, and institutions of higher education are only required to report on items 5 and 7. For subrecipient reporting requirements, applicability is determined by the subrecipient entity type, regardless of whether the prime recipient was exempt.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

40 1. Any current or pending subsidiary, foreign business entity, or offshore entity that is based in or funded by any foreign country of risk or foreign entity based in a country of risk;

2. Any current or pending contractual or financial obligation or other agreement specific to a business arrangement, or joint venture-like arrangement with an entity owned by a country of risk or foreign entity based in a country of risk;

3. Any current or pending change in ownership structure of the recipient or subrecipients that increases foreign ownership related to a country of risk. Each notification shall be accompanied by a complete and up-to-date capitalization table showing all equity interests held including limited liability company (LLC) and partnership interests, as well as derivative securities. Include both the number of shares issued to each equity holder, as well as the percentage of that series and of all equity on fully diluted basis. For each equity holder, provide the place of incorporation and the principal place of business, as applicable. If the equity holder is a natural person, identify the citizenship(s);

4. Any current or pending venture capital or institutional investment by an entity that has a general partner or individual holding a leadership role in such entity who has a foreign affiliation with any foreign country of risk;

5. Any current or pending technology licensing or intellectual property sales to a foreign country of risk;

6. Any changes to the recipient or the subrecipients’ board of directors, including additions to the number of directors, the identity of new directors, as well as each new director’s citizenship, shareholder affiliation (if applicable); each notification shall include a complete up-to-date list of all directors (and board observers), including their full name, citizenship and shareholder affiliation, date of appointment, duration of term, as well as a description of observer rights as applicable; and

7. Any of the following changes to the equipment proposed for use on the project:
a. Unmanned aircraft, control, and communication components originally made or manufactured in a foreign country of risk (including relabeled or rebranded equipment).
b. Coded equipment where the source code is written in a foreign country of risk. c. Equipment from a foreign country of risk that will be connected to the internet or other remote communication system.
d. Any companies from a foreign country of risk that will have physical or remote access to any part of the equipment used on the project after delivery.

Should DOE determine the connection poses a risk to economic or national security, DOE will require measures to mitigate or eliminate the risk.

DOE has designated the following countries as foreign countries of risk: Iran, North Korea, Russia, and China. This list is subject to change.

Recognizing the disclosures may contain business confidential information, subrecipients may submit their disclosures directly to DOE.

SCEP Award No. DE-SE0000736.0000 With City of Milpitas (CA) Special Terms and Conditions

41 Term 52. Foreign Collaboration Considerations

a. Consideration of new collaborations with foreign entities, organizations, and governments. The recipient must provide DOE with advanced written notification of any potential collaboration with foreign entities, organizations, or governments in connection with its DOE-funded award scope. The recipient must await further guidance from DOE prior to contacting the proposed foreign entity, organization or government regarding the potential collaboration or negotiating the terms of any potential agreement.

b. Existing collaborations with foreign entities, organizations, and governments. The recipient must provide DOE with a written list of all existing foreign collaborations, organizations, and governments in which has entered in connection with its DOE-funded award scope.

c. In general, a collaboration will involve some provision of a thing of value to, or from, the recipient. A thing of value includes but may not be limited to all resources made available to, or from, the recipient in support of and/or related to the Award, regardless of whether or not they have monetary value. Things of value also may include in-kind contributions (such as office/laboratory space, data, equipment, supplies, employees, students). In-kind contributions not intended for direct use on the Award but resulting in provision of a thing of value from or to the Award must also be reported.

Collaborations do not include routine workshops, conferences, use of the recipient’s services and facilities by foreign investigators resulting from its standard published process for evaluating requests for access, or the routine use of foreign facilities by awardee staff in accordance with the recipient’s standard policies and procedures.

Term 53. Impacted Indian Tribes
If any activities anticipated to take place under this agreement could potentially impact the resources or reserved rights of Indian Tribe(s), as defined in 25 U.S.C. § 5304 (e), then the recipient/awardee agrees to develop and maintain active and open communications with the potentially impacted Indian Tribe(s), during the period of performance of the agreement, and, if necessary, after the end of the agreement. Approval by DOE must be obtained before any activities take place that could impact Tribal resources or reserved rights, including but not limited to lands, cultural sites, sacred sites, water rights, mineral rights, fishing rights, and hunting rights. The recipient/awardee must coordinate with DOE on all Tribal interactions. DOE will determine if formal government-to-government consultation is needed, and DOE will conduct that consultation accordingly.

• Tribal lands is as defined in 25 U.S.C. §§ 3501(2), (3), (4)(A) and (13). • Indian Tribe is as defined in 25 U.S.C. § 5304 (e).

RESOLUTION NO._______

A RESOLUTION OF THE CITY COUNCIL OF MILPITAS ACCEPTING THE DEPARTMENT

OF ENERGY GRANT AWARD FOR THE CARBON NEUTRAL HOMES INCENTIVE

PROGRAM
WHEREAS, the United States Congress Appropriations Committee accepted projects from each Committee Representative for review and consideration for federal Community Project Funding (CFP) for the Fiscal Year 2023; and
WHEREAS, the City of Milpitas is within Congressional District 17 represented by Ro Kanna, who is a member of the Appropriations Committee; and
WHEREAS, on April 19, 2022, City of Milpitas adopted Resolution No. 9140 in support of submitting the Carbon Neutral Homes Incentives Project as one of the City’s three projects submitted for CPF consideration; and
WHEREAS, the City Council adopted the an update to the City’s Climate Action Plan on August 9, 2022 which included substantive community engagement and set the goal of achieving carbon neutrality by 2045; and WHEREAS, a key strategy for reducing carbon emissions is by Maximizing Building Decarbonization and Efficiency through electrification and shifting from natural gas to clean, all-electric appliances and equipment; and
WHEREAS, the local Community Choice Energy provider (Silicon Valley Clean Energy) offers an incentive package for home electrification; and
WHEREAS, the Carbon Neutral Homes Incentives Program will complement Silicon Valley Clean Energy’s program and support the electrification of up to 1,000 single-family homes in Milpitas; and WHEREAS, the Carbon Neutral Homes Incentives Program was included in the Fiscal Year 2023 Federal Budget appropriation package that was approved by the U.S. Congress and signed by President Biden; WHEREAS, the U.S. Department of Energy has awarded the Fiscal Year 2023 Congressionally Directed Spending for the Cabron Neutral Homes Incentive Program (Award No. DE-SE000736) to the City of Milpitas; AND WHEREAS, the City’s Carbon Neutral Homes Incentives Program would complement our local Community Choice Energy provider’s (Silicon Valley Clean Energy) incentive package by providing up to $3,000 on average more per participant to significantly drive down the costs of retrofit and create greater access to carbon neutral homes for up to 1,000 Milpitas homes.

NOW, THEREFORE the City Council of the City of Milpitas, hereby find, determine, and resolve as follows:

1. The City Council has considered the full record before it, which may include but is not limited to such things as the staff report, testimony by staff and the public, and other materials and evidence submitted or provided to it. Furthermore, the recitals set forth above are found to be true and correct and are incorporated herein by reference.

2. The City accepts the award of the Fiscal Year 2023 Congressionally Directed Spending (Award No. DE- SE000736) from the US Department of Energy for the Carbon Neutral Homes Incentive Program.

3. The City Council authorizes the City Manager or their designee to execute the Assistance Agreement with the US Department of Energy for the Milpitas Carbon Neutral Homes Retrofit Program.

2 Resolution No. XXXX

4. The City Council approves and authorizes the City Manager or their designee to appropriate the respective revenue and expenditures in the amount of $3,000,000 as indicated in the staff report contingent upon formal acceptance of the grant.

PASSED AND ADOPTED by the City Council of the City of Milpitas, State of California this _______ day of _______, 2025, by the following vote:

AYES:

NOES:

ABSENT:

ABSTAIN:

ATTEST: APPROVED:

Suzanne Guzzetta, City Clerk Carmen Montano, Mayor
APPROVED AS TO FORM:

Christopher Creech, Acting City Attorney

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Receive an Update on the Security Improvements at the McCarthy Ranch Sewer Lift Station (Main Lift) and Determine that the Condition Continues to Constitute an Emergency (Staff Contact: Christian Di Renzo, Public Works Director, 408-586-2602)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 3/18/2025
Recommendation: (1) Receive an update on the security improvements at the McCarthy Ranch Sewer Lift Station; and (2) Determine by a four-fifths vote that the condition continues to constitute an emergency.

BACKGROUND:

Pursuant to Public Contract Code section 22050 and the attached Council Resolution No. 9134, the Director of Public Works, in the case of emergency, may authorize a repair of a public facility and procure the work without giving notice for bids. An emergency is defined as “a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services.” Additionally, State law requires the Public Works Director, as the City official with delegated authority to take emergency action, to report any emergency authorization and the reason(s) for the authorization to the City Council not later than seven days after the action, or at its next regularly scheduled meeting if that meeting will occur not later than 14 days after the action. Further, the Public Works Director is required to report why the emergency would not permit a delay resulting from a competitive solicitation for bids and the City Council is required to review the emergency action at every regularly scheduled meeting thereafter until the emergency repair is completed. The City Council shall continue to review the emergency action at every regularly scheduled meeting thereafter until the action is terminated. At each review, the City Council shall determine, by a four-fifths vote, whether there is a need to continue the action.

Consistent with applicable State law and Council Resolution, on July 30, 2024, the Public Works Director declared an emergency and authorized the City to contract with Trofholz Technologies and Diamond Fencing to implement various security and access control improvements to the McCarthy Ranch Sewer Lift Station (Main Lift). Further, within the required timeframe the Public Works Director informed the City Council via Information Memorandum on July 31, 2024, regarding the emergency authorization, the reasons for the authorization, and the cost for repair in a not to exceed amount of $700,000.

PROJECT/STATUS UPDATE:

On January 25, 2025, the Main Lift station experienced another burglary resulting in additional property damage and theft of City vehicles. Three Ford-F250 heavy-duty pickup trucks were stolen and at least one of them was used to forcibly drive through the wrought-iron gate. The vehicles have since been recovered, although staff is assessing the full extent of the damage. Property damage to Main Lift was limited to the two wrought-iron gates. The impacted gates are located at the main entry gate into the Main Lift station, and between the Main Lift station and Corporation Yard. Trofholz is updating the security network connection service with the IT Department. New gates have been ordered and will be delivered by March 21, 2025.

Estimated installation completion date is the first week of April. The perimeter fence installation is completed and awaiting the gates installation for final completion.

The budgeted project contingency should be sufficient to cover the replacement of the recently damaged gates. The contractor will be installing a high fence with security wire and mesh at the main entry for added security while the replacement gate is being fabricated and shipped.

The installation of security enhancements by Trofholz Technologies, Inc. were also not compromised.

Information Technology staff is working on establishing the network connectivity to operate the security cameras, card readers, and motion sensors at the Main Lift facility. Cameras on the electrical building are operational and provide coverage/recording of the main gate as well as the sewer pump station buildings.

Access control readers and motions sensors have been installed and are active. Several other cameras throughout the property are currently undergoing testing and verification in coordination with the Information Technology and Police departments.

FISCAL IMPACT:

Funding for these repairs is available in the City’s Capital Improvement Program (CIP) budget. CIP Project 6124 – Sewer Pump Station Rehabilitation Project will fund the installation of security cameras, card readers, and motion sensors. The funding source of this CIP project is Sewer Infrastructure Fund. The available balance as of 01/07/2025 is $1,277,987.

CIP 6130 – Main Lift Odor Emission Control Project will fund the removal and replacement of the perimeter fencing. The funding source of this CIP Project are Sewer Infrastructure Fund, and Sewer Treatment Fund.

The available balance as of 01/07/2025 is $14,852.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

The emergency repair work is exempt from CEQA, per CEQA Guidelines Section 15301, Existing Facilities and 15302, Replacement or Reconstruction.

RECOMMENDATION:
(1) Receive an update on the security improvements at the McCarthy Ranch Sewer Lift Station. (2) Determine by a four-fifths vote that the condition continues to constitute an emergency.

ATTACHMENT(S):

None.

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve Installation of Womanhood Project Marker at Delano Manongs Park (Staff Contact: Renee Lorentzen, Recreation and Community Services Director, 408-586-3409; and Tegan McLane, Assistant Recreation and Community Services Director, 408-586-3212)
Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 3/4/2025
Recommendation: Approve installation of a Womanhood marker in commemoration of Dr. Dawn Mabalon at Delano Manongs Park from The Womanhood Project funded by the County of Santa Clara Office of Women’s Policy.

BACKGROUND:

The City of Milpitas has been asked to participate in a Santa Clara Countywide public art project honoring contributions of local women. The specific request is to allow installation of a sign honoring Dr. Dawn Mabalon at Milpitas’ Delano Manongs Park.

ANALYSIS:

The Santa Clara County Office of Women’s Policy has funded a Countywide public art project that will install markers in public spaces around the County commemorating local women who have made important contributions in a number of fields. These markers are metal signs bearing an artist-designed visual code that the public can scan with a phone application, as they might a QR code, to access artwork, poetry and storytelling about the woman being honored.

The project coordinator, Art Builds Community, has approached Milpitas requesting permission to place a marker for Dr. Dawn Mabalon in Delano Manongs Park. Dr. Mabalon was born in Stockton and was a poet, journalist, historian, and activist. She was third generation Pinay, and the first Pinay to earn a Ph.D. in American History from Stanford University. Her academic research focus was Filipino American history, including work on the life of Larry Itliong and the Delano Manongs. Her poetry, articles and curriculum in Filipina/o American history and studies are published widely in books, anthologies, and journals including Tomorrow’s Memories: The Diary of Angeles Monrayo (2003), Coming Home to a Landscape: Writings by Filipinas (2003), Pinay Power: Pilipina Peminist Theory (2006), and AAPI Nexus (2016). She is a co-author of several articles and books, which were in press the year she died (2018), including works on Filipina women and foodways, and a historic book for youth entitled Journey for Justice: The Life of Larry Itliong, co-written with Gayle Romasanta and iIlustrator Andre Sibayan. This is the first illustrated children’s book on Filipino American history and the first about Larry Itliong, the co-founder of the United Farm Workers.

Dr. Mabalon was named one of the 100 Most Influential Filipinas in the world by the Filipino Women’s Network.

In 2014, her book Little Manila is in the Heart won Honorable Mention for the Frederick Jackson Turner Award.

She also received the Community Service Award from Asians and Pacific Islanders in Historic Preservation in 2016 and the Mid-Career Award from the Filipino Section of the Asian American Studies Association in 2018.

Dr. Mabalon’s marker features work by South Bay women creatives Arlene Biala, Jayann Bella, and Frances Mendoza.

The sign (Attachment A) will be 24” wide x 15” tall and is fabricated from weather and UV resistant aluminum with a protective coating. The lifespan of the sign is expected to be 5 years. City Public Works and Recreation and Community Services staff will determine the exact location within the park, but the request is that the sign

be mounted on an existing fence with accessibility so sight-impaired people who read braille may read the contents.

With the County’s publicity of the project beginning in March 2025 and including a map of the sign locations throughout the County, it is expected the sign will draw visitors who are “following the trail” of County womanhood markers. The other markers are being installed in museums, libraries, universities and parks in San José, Palo Alto, Santa Clara, Mountain View, Gilroy and unincorporated Santa Clara County.

As the proposal is to install a form of public art in a Milpitas park, it was presented to a joint meeting of the Arts Commission and Parks Recreation and Cultural Resources Commission on January 6, 2025. Both commissions unanimously voted to recommend that the City Council approve participation in the project by allowing installation of the marker at Delano Manongs.

POLICY ALTERNATIVE(S):

Alternative 1: Do not approve installation of the Womanhood marker at Delano Manongs Park.

Pros: Minimally saves staff implementation time and resources.

Cons: By not approving, Milpitas would not be participating in this Countywide project. The other markers are being installed in museums, libraries, universities and parks in San José, Palo Alto, Santa Clara, Mountain View, Gilroy and unincorporated Santa Clara County.

Reason for Not Recommending: This no cost project aligns with and demonstrates the City’s commitment to diversity and public art. This is a thoughtful installation that is relevant and beneficial both to the park itself and its integration and connectivity to the local community and the wider public facilities that this program connects.

FISCAL IMPACT:

No fiscal impact is anticipated with this item. Design and installation of the marker is funded by Santa Clara County Office of Women’s Policy and sponsors of the project. Any repairs or replacement of the marker is the responsibility of Santa Clara County.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

The project has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and is not a project pursuant to Pub. Resources Code, § 21065 and Cal. Code Regs., tit. 14, § 15378.

RECOMMENDATION:

Approve installation of a Womanhood marker in commemoration of Dr. Dawn Mabalon at Delano Manongs Park from The Womanhood Project funded by the County of Santa Clara Office of Women’s Policy.

ATTACHMENT(S):
(a) Proposed Womanhood Marker featuring Dr. Dawn Mabalon (b) Womanhood Marker Proposal

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CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Receive Update on Milpitas Innovation District Branding Initiative and Logo Design Status (Staff Contact: Alex Andrade, Economic Development and Strategic Initiatives Director, 408-586-3046)
Category: Community Development
Meeting Date: 3/18/2025
Recommendation: Receive update on Milpitas Innovation District Branding Initiative and approve Logo Design Option #1 for final development by consultant Navajo Company.

BACKGROUND:

The Milpitas Innovation District (MID) is a 74-acre area located within the Milpitas Metro Specific Plan (MMSP) approximate 510-acre area. Specifically, the Milpitas Innovation District is located on the southern end of Milpitas, where Montague Expressway and South Milpitas Boulevard converge along with four parcels adjacent to the south end of the Great Mall of Milpitas. Innovation Districts are geographic areas that include a mix of small and medium-sized businesses, startups, and academic institutions operating in physically compact, transit-accessible, and technically-wired areas that offer a mix of commercial and residential uses. Innovation Districts typically include a combination of the following features: advanced research institutions and medical campuses, real estate investors/developers and landowners, anchor companies, and incubators, accelerators, and other economic cultivators.

The Fiscal Benefits of Employment Lands Final Report’s Innovation District Action Plan is a two-phased report.

Phase I consists of the Fiscal Impact Analysis, Occupation and Wage Analysis, Innovation District Development Scenarios Analysis, and Residual Land Value Analysis. Phase II includes a Milpitas Innovation District Assessment, Innovation District Case Studies, and the Innovation District Action Plan. On April 19, 2022, the City Council received the Innovation District Implementation Action Plan presentation. The Innovation District Implementation Action Plan includes fourteen actions that are divided into three categories:
(1) Incentivizing New Development; (2) Funding and Investing; and (3) City Leadership, Outreach, and Partnerships. The Innovation District Branding Initiative falls under the City Leadership, Outreach, & Partnerships category.

The Innovation District’s Branding Initiative commenced with a public bid process through a Request for Proposal (RFP) issued on June 2, 2023. Following a competitive RFP process, Milpitas-based marketing agency Navajo Company was selected as the branding consultant. Navajo Company is a full-service marketing agency that works to fulfill leading technology companies’ marketing needs. The City of Milpitas and Navajo Company executed a Professional Services Agreement on October 4, 2023, for the Innovation District brand strategy that encompasses brand guidelines through brand identity, purpose and messaging. The scope of work also includes a business attraction campaign that incorporates website design and development, and assets such as “welcome” packets for investors, businesses and developers, as well as branded content articles, and presentations for future investment.

ANALYSIS:

Fiscal Benefits of Employment Lands Study
Adopted in 2022, Fiscal Benefits of Employment Lands Final Report Innovation District Action Plan is a two- phased report. Completed in October 2021, Phase I identified potential benefits of successfully implementing the Innovation District including:
•Substantial net revenues to the City’s General Fund to help cover public service costs; •A range of new professional, scientific, and technology businesses attracting thousands of high-quality jobs; and
•Transforming the Metro Specific Plan Area into a vital mixed-use transit-oriented area.

Challenges identified in the study include:
•Area transformation occurs incrementally over time;
•Lack of large vacant sites requiring parcel assemblage and willing property owners supporting redevelopment; and
•Construction costs.

Completed in June 2022, Phase II culminated in a final report combining contextual information and data concerning development opportunity sites and costs of commercial, industrial, and mixed-use parcels within and around the Innovation District, case studies of other Innovation Districts, and a broad range of options and action items suitable for creating an Innovation District Action Plan. The report noted the economics of commercial development in the Innovation District are challenging due to small parcels, construction costs and project financing, making the City’s actions to incentivize and support Innovation District development important. The three principal categories of the Innovation District Action Plan are:

1. Incentivizing new development;

2. Funding and investing; and

3. City leadership, outreach, and partnerships.

The Milpitas Innovation District (MID) is envisioned as a thriving employment destination featuring emerging technologies in artificial intelligence, machine learning, automotive technology, biosciences and robotics operating in creative flex, light industrial and research and development (R&D) buildings. To align with principles of the Metro Specific Plan, the MID was rezoned from Light Industrial to Business Park Research and Development (BPRD-Metro) following City Council adoption of Phase I of the Comprehensive Zoning Ordinance Update on June 18, 2024. The purpose of the BPRD-Metro Zoning District is to designate specific areas of the city as important employment centers, especially for jobs in the high-tech industry. The BPRD- Metro Zone is intended to accommodate business parks, high-intensity office buildings, advanced manufacturing, and other light industrial uses, and enable the integration and growth of research and development, office, and light manufacturing uses on consolidated sites with supportive ancillary uses, typically on the ground floor, such as restaurants, health and fitness centers, limited retail, and childcare facilities to serve workers. The BPRD-Metro zone implements the BPRD land use designation as described in the Metro Specific Plan, which the City Council adopted in February 2023, and realized General Plan Action ED-3i to create an “Innovation District” in the Metro Specific Plan Area.

Besides being envisioned as an employment destination, the Innovation District is also envisioned as a flexible space for people to interact through a well-connected network of public infrastructure including bike paths, pedestrian-scale sidewalks, social gathering places, and high-speed fiber with proximity to public transit via the Milpitas Transit Center. Metro Specific Plan principles include pedestrian-oriented streets, public space activation, and information technology infrastructure and utilities to support a technologically connected community. The vision includes shaping Milpitas urban development practices to build a culture of creativity, innovation, inclusivity, equity, and agility to help advance opportunities for innovation.

The Innovation District Branding Initiative’s project scope of work includes multiple deliverables with brand strategy being the foundation of the initiative. A brand strategy is a long-term plan to differentiate a brand (i.e., the Innovation District) from competitors (i.e., other Silicon Valley communities) to build loyalty with customers

(i.e., employers, residents, landowners, and real estate investors and developers). A brand strategy helps businesses – in this case the City of Milpitas – communicate their value and connect with their customers. The brand strategy centerpiece is the brand’s most identifiable elements of name, tagline and logo. These three elements evolved from an iterative process among staff, the consultant, and the Economic Development and Trade Commission (EDTC) between May and November 2024.

The brand strategy comprises the following elements, which informs the development of the brand name, tagline and logo:
•Brand Identity: A distinct personality, tone of voice, and visual elements that represent the brand consistently across all touchpoints.
•Brand Purpose: Adapt the vision, benefits, and principles described in the Milpitas Innovation District Action Plan to guide all messaging and marketing activities. •Target Audience: Articulate the primary needs and drivers for target audiences. •Brand Messaging: Create a tagline, a brand story, and positioning statements for each defined target audience.
•Brand Core: The brand’s core elements of vision, mission, values, themes, and positioning statements to target audiences which are defined in the table below and influenced the district’s name and tagline.

Brand Core Element Description
Vision
This community is envisioned as a highly desirable employment destination for STEM professionals. Environmentally sustaining, easily accessible, and integrated with the surrounding residential, retail, and open space environments to optimize employee well- being and productivity, increasing value to employers and property owners.

Mission
Create a flexible space for commercial real estate developments supporting research, product development, education, and related activities within Milpitas built environment and transportation infrastructure.

Values
•People-centric
•Business friendly
•Environmental sustainability
•Plan for resilience
Themes
•Employee life balance
•Mobility and connectivity
•Family and community
•Thriving and business-friendly city
Target Audiences
•Employers
•Residents
•Landowners
•Real estate investors and developers
District Name and Tagline
Following an iterative process involving Navajo Company, City staff and the Economic Development and Trade Commission, the name and tagline of “Milpitas Innovation District: Reimagining Work, Connection, and Community” was selected. The name is clear, simple, and easy to understand as the name clarifies that the brand represents a distinct location that is a connected hub in which to live, work, and gather. The tagline represents a people-focused approach as there is a growing consensus that Innovation Districts today must be designed for the humans who inhabit them. Audiences that respond to people-focused branding consider the needs of the employees at the Innovation District tenant companies. Leveraging the potential cachet of the well-developed Milpitas Metro Specific Plan, this brand name positions the Innovation District as the area’s tech center while the tagline references impactful innovation that makes life work better in the district.

Logo Development
After the name and tagline were selected, Navajo Company provided first draft logo designs of three logo marks and three letter marks, as well as fonts and color palettes in September 2024. A logo mark is an image or icon, while a letter mark is a logo made up of letters, usually the initials of the brand. Examples of logo marks include Apple, Nike and Target while examples of letter marks include CNN, IBM and RCA. While staff preferred most of the color palettes and font options, staff requested revised drafts of the logo and letter mark designs the consultant provided in October that were integrated with the fonts and color palettes selected in the first draft.

The revised draft logo marks took inspiration from features in Milpitas’ natural and built environment such as the nearby hills and architectural features in contemporary buildings like the multi-modal Valley Transportation Authority (VTA) and Bay Area Rapid Transit (BART) Station. The letter mark took inspiration from design features in Milpitas’ infrastructure and built environment such as architectural design features. These draft designs are extensions of the brand identity that was influenced by the brand core elements of brand vision, mission, values and themes, and target audiences.

The sans serif font is clean, simple, and contemporary. The color palette reflects both contemporary, technology-themed hues, as well as primary and secondary colors of the City’s community mark that include hues in the natural environment. Logo design options and color palettes are provided in Attachment A.

In November, City staff review of revised logo designs was performed by the City Manager’s Office, Recreation and Community Services, Public Information, and Office of Economic Development with a preference for Logo Design Option #1. This design reflects metro connectivity and wayfinding influenced by Milpitas’s multi-modal transit station and upward momentum symbolizing innovation. At its special meeting on November 18, the Economic Development and Trade Commission (EDTC) reviewed the six revised logo designs and expressed that Logo Design #1 as most appealing because it is clean, clear and recognizable.

While Logo Design Option #1 was preferred, it could benefit from enhancement into a dynamic logo. A dynamic logos is appealing because it is recognizable and memorable to a target audience. A memorable and dynamic logo supports the brand’s essence and tells a good story, and in the case of the Innovation District conveys innovation, transformation, co-creation and growth. Dynamic enhancements can include color and design that aligns with context. Examples of dynamic brand logos include Apple, FedEx and Google along with innovation districts in other communities. After review by staff and the EDTC, consensus was not reached on the three letter mark design options and have been removed from further consideration. Following City Council direction on logo design, the consultant may proceed with developing the final logo design which will then inform the development of the remaining deliverables.

Logo Design Option #1
Project Deliverables
To date, most of the project work has been devoted to name, tagline and logo development with the first two elements completed and the third pending City Council direction . Following completion of logo development, consultant and staff will move forward on remaining deliverables summarized in Attachment B.

POLICY ALTERNATIVE(S):

Alternative: Approve another logo for further development.

Pro: Create a new logo for further development that meets City Council vision.

Con: Revisions would result in additional costs with limited resources related to the Brand Identity deliverable.

Creating a new logo could result in other project deliverables and contingency funds being reduced or eliminated. If this alternative is pursued, additional funding may be required, and the delivery schedule will be negatively affected.

Recommendation: Staff recommends proceeding with Logo Design Option #1 because City staff and the EDTC reached consensus on this design option. Also, staff and consultant are close to completing the Brand Identity deliverable, and delaying this deliverable will delay implementation of the remaining project deliverables and business attraction efforts.

FISCAL IMPACT:

In the FY 2022-23 Operating Budget process, the City Council allocated $74,590 in general fund dollars to the Office of Economic Development and Strategic Initiatives to fund the Innovation District’s branding initiative scope of work. To date, $17,191 has been expended towards deliverables in the scope of work, mostly for brand identity development, with a remaining balance of $57,399, which includes $4,619 for contingency costs.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
The action is an organizational or administrative activity of the City government that will not result in direct or indirect physical changes in the environment and is not a project pursuant to Cal. Code of Regs., tit. 14, § 15378.

RECOMMENDATION:

Receive update on Milpitas Innovation District Branding Initiative and approve Logo Design Option #1 for final development by consultant Navajo Company.

ATTACHMENT(S):
(a) Logo Designs and Color Palettes
(b) Project Deliverables

Attachment A
Milpitas Innovation District Logo Design Options and Color Palettes Logo Design Influences

Color Palettes

Logo Design Options
A logo mark is an image or icon depicting a brand.

Logo Design Option #1
Description: Metro connectivity, wayfinding and upward momentum.

Logo Design Option #2
Description: Unique sun rising over the hills representing newness and a new day.

Logo Design Option #3
Description: Connection, ideas coming together; different, but welcoming and recognizable.

Attachment B: Innovation District Branding Initiative Project Deliverables Deliverable Description Cost
Brand Guidelines
Document
A document that includes the following components:

Brand identity: Logo, typography, colors, imagery, and overall brand aesthetics. A minimum of three distinct creative options will be presented.

Brand purpose: A succinct statement of the brand’s core values, mission, and vision that will guide all messaging and marketing activities
Target audience: Descriptions of the primary needs and drivers for the stated target audiences
Brand messaging: Tagline, brand story, and positioning
statements for each target audience
$14,850
City of Milpitas
Innovation District
Lead Generation
Develop a lead generation contact list targeting the following industries: AI, Auto Technologies and Bioscience for purposes of raising interest in the City’s
Innovation District. The project scope will include the following:

1.Obtain user license on behalf of the City of Milpitas for Dunn & Bradstreet Hoovers Explore industry database. License will allow for maximum of 5,000 contact credits.

2.Develop list queryering criteria.

3.Review list query results with client and adjust as necessary.

4.Select candidates from list for follow-up.

5.Produce email content for list distribution.

6.Execute email blast via the client’s Constant Contact user license

7.Follow-up with a single telephone outreach call perfor up to 5,000 contact credits.
$12,081
Prospect welcome
packet
Creation of a welcome packet for prospective investors, developers, and businesses. Includes design of packet folder and individual packet collateral pieces, written content, and photos $6,280
Branded articles Creation of twelve (12) 12 branded content articles promoting Milpitas economic development for online and print advertising.

Includes interviews and/or editorial meetings for each article, writing, editing, and obtaining stakeholder approvals.
$14,160
Pitch deck
PowerPoint
template
Create PowerPoint template City staff to use when pitching Milpitas Innovation District investment opportunities to businesses, real estate development
professionals, and investors.
$2,950
Milpitas Innovation
District website:
design and
development
This website will function as the main online presence of the Milpitas Innovation District. Number of web pages TBD, but estimated to be between five and eight. Website creation includes planning and requirements gathering, wireframes, mockups, coding, and testing.

Website deployment, maintenance, and updating
services are available.
$19,650
Contingency $4,619
Total $74,590

CITY OF MILPITAS

AGENDA REPORT
(AR)
Item Title: Approve Design for Historical Park Marker Project (Staff Contact: Renee Lorentzen, Recreation and Community Services Director, 408-586-3409) Category: Consent Calendar-Community Services and Sustainable Infrastructure Meeting Date: 3/18/2025
Recommendation: (1) Approve the design for Historical Park Markers by Vicki Jo Sowell; and (2) transfer $10,000 from CP3489 Public Art Program to fully fund this project.

BACKGROUND:

As part of their respective City Council-approved FY2020-21 Workplans, the Arts Commission and Parks Recreation and Cultural Resources Commission (PRCRC) were directed to collaborate on a project to develop historical park markers that would be public art pieces, honoring park namesakes. With the recent addition of Delano Manongs Park, Milpitas has 20 parks named for people and/or cultural groups.

A joint subcommittee of the Arts Commission and PRCRC was convened in May 2021 to develop a plan for a Historical Park Marker Project. The Park Marker Subcommittee (Subcommittee) consisted of two Arts Commissioners and three PRCRC Commissioners, one of whom also represented the Milpitas Historical Society.

The Subcommittee developed a concept of a unique-to-Milpitas, artist-designed kiosk which would contain interpretive signage about the park’s namesake, community-designed artwork and, depending on space, possibly interpretive signage about the parkland’s former use, or native floral/fauna On September 19, 2023, City Council approved the concept and funding for phase one projects, which will be Bob McGuire Park, Creighton Park, Delano Manongs Park, Gill Park, José Higuera Adobe Park, Murphy Park, and Sunnyhills Albert Augustine Jr. Memorial Park.

ANALYSIS:

A Call for Artists for the Historical Park Marker Project was issued in January 2024, with 14 artists responding.

The Subcommittee selected its top four finalists to create Milpitas-specific designs. Three of those submitted full design proposals, and the Subcommittee opted to invite the fifth ranked finalist to submit, so that there would be four Milpitas-specific designs to consider.

The Subcommittee unanimously selected the design by Emeryville artist Vickie Jo Sowell as its overwhelming first choice, with KD Workshop’s design as a second choice.

Ms. Sowell’s design, “Natives,” is a tri-fold steel screen featuring cutouts of flora and fauna native to Milpitas. It could be painted the same color for all parks or different colors for each park. The screen has room for four panels of printed material per park. Several versions were presented; the committee liked the proposal with the interpretive panels separated by a screen with no interpretive panels, so people could be spaced apart reading them.

Comments in favor included the fact that it had an obvious connection to Milpitas (flora and fauna), was artistic, simple, outdoorsy, and will fit well in both historic parks and more modern designs. The cut-outs allowed for the

park behind to be visible. The artist’s resume adequately demonstrated her ability to complete the project. Ms.

Sowell is the creator of the Legends of Milpitas pillars in Murphy Park.

The Arts Commission and Parks, Recreation and Cultural Resources Commission considered Ms. Sowell’s design at a Special Meeting on January 6, 2025, and both Commissions unanimously recommended this design be forwarded to City Council for approval
POLICY ALTERNATIVE(S):

Alternative 1: Do not approve Vicki Jo Sowell’s design for the historical park makers.

Pros: There are no pros to this alternative.

Cons: By not approving, this project would likely need to issue a new Call for Artists, as there was not a close second choice for consideration. This would likely delay the project by about a year.

Reason for Not Recommending: This design meets all the selection criteria and was the unanimous choice of the Public Art Selection Committee and two City Commissions.

FISCAL IMPACT:

This project is included in the CP3489 Public Art Program in the FY 2025-29 Adopted Capital Improvement Program. The project is estimated at $100,000. In its September 19, 2023 action, the City Council appropriated $90,000 for this project from the Public Art Fund. As of March 13, 2025, there remains approximately $563k of uncommitted funds in CP3489. Staff recommends the transfer of an additional $10,000 from the already appropriated CP3489 Public Art Program to complete the funding for this project.

CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA):

The project has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and is not a project pursuant to Pub. Resources Code, § 21065 and Cal. Code Regs., tit. 14, § 15378. The project entails the operation and minor alteration of existing public structures, facilities, or topographical features, involving negligible or no expansion of existing or former use and is exempt from CEQA pursuant to Cal. Code Regs., tit. 14, § 15301.

RECOMMENDATION:
(1) Approve the design for Historical Park Markers by Vicki Jo Sowell; and (2) Transfer $10,000 from CP3489 Public Art Program to fully fund this project.

ATTACHMENT(S):
(a) Vickie Jo Sowell’s Design Proposal for Historical Park Markers

Design Proposal Narrative
Milpitas Historical Park Markers
“Natives”
Vickie Jo Sowell, Sculptor
http://unrulyimages..com

Artist Statement
The Milpitas Historical Park Marker project offers the City an opportunity to establish a consistent identity for its parks across all locations. For this project I’ve chosen the theme of “Natives,” using imagery drawn from the flora and fauna native to the Milpitas region, live oak and sycamore leaves, as well as critical pollinator species, the bees, monarch butterfly, and Anna’s hummingbird. These will be rendered as multiple machine-driven cutouts in steel. As the drawings and renderings on the following pages show, the cutout panels will be joined to form a structurally strong zig-zag shaped kiosk, secured to ground-level concrete pads. On two of the three sections of the kiosk, space is provided for back-to- back waterproof outdoor display cases. The maquette I’ve provided illustrates two options, one in which two display cases are mounted side by side, the other where they are separate.

Proposed Materials and Dimensions
Each kiosk will be constructed of three 72” x 35” rectangular frames built from 2.5” square steel tubing, hinged at approximately 120 degree angles to each other. Within these structural frames, thematic art panels waterjet cut from ¼” Sheet Steel are welded, one the full height, and the other two panels half high, 36” x 35”, providing space on front and back to mount four off-the-shelf Swansea Outdoor Lockable Display Cases. At the bottom of each rectangular frame the square tube will extend two legs 8” long, terminating in steel mounting plates that will be bolted to a concrete pad. For sections in which display cases are inset, overhanging roof elements will be added, to provide additional protection for the waterproof, lockable cases.

The use of computer-driven water-jet cutting allows replacement of any severely damaged panels, as well as for easy scaling of the images for other applications in other signage in the parks, if desired.

Their angled arrangement can be adjusted to fit larger and smaller park locations. The suggested golden tan color RA1007 is just one of many choices available from Prismatic Powders, see the attached sample sheet. The commercially available Swansea outdoor display cases I propose can be easily replaced if damaged.

Because the seven kiosks will be constructed of interchangeable, reproducible parts, the longevity of the kiosks is indefinite. Many of the similar powder-baked surfaces I’ve installed have been in place for over twenty years. The cutout artwork panels are unattractive to graffiti placement, but the budget includes matching spray paint for touch-up if this should prove necessary.