HomeMy WebLinkAboutResolution - 2010-R0298 - Grant From US Dept. Of Commerce For Downtown Lubbock Utilities And Services - 06/24/2010Resolution No. 2010-RO298
June 24, 2010
Item No. 5.15
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to accept a $1,500,000 grant on behalf of the City of Lubbock from the United
States Department of Commerce, Economic Development Administration to upgrade and
relocate the downtown Lubbock utilities and services underground. Notice of the grant
award is attached hereto and incorporated in this Resolution as if fully set forth herein
and shall be included in the minutes of the Council.
Passed by the City Council on June 24 , 2010.
TOM MARTI , MAYOR
ATTEST:
'Q =aetz', - '.. '5---�c
cbec a Garza, City Secretary
ZAPPRC,D F a T' CONTENT:
Rob Alliso'n,—Kssi—st—anreity Manager
Business Development
APPROVED AS TO FORM:
Linda L. Chamales,
Economic Development Attorney
Lc: LATTY/Linda RESOLUTIONS. RES -2010 EDA Grant downtown utilities
June 3, 2010
Resolution No. 2010-RO298
FORM CD -450 U.S. DEPARTMENT OF COMMERCE
(REV. -03)
m GRANT [:]COOPERATIVE AGREEMENT
DAO 20303-26
FINANCIAL ASSISTANCE AWARD
AWARD PERIOD
60 months from date of approval
RECIPIENT NAME
AWARD NUMBER
City of Lubbock
08-01-04553
STREET ADDRESS
FEDERAL SHARE OF COST
162513th Street
$ 1,500,000
CITY, STATE, ZIP CODE
RECIPIENT SHARE OF COST
Lubbock, Texas 79457
$ 800,000
AUTHORITY
TOTAL ESTIMATED COST
Public Works and Economic Development Act of 1965, as amended (42 U.S.C. § 3121 et seq.)
$ 2,300,000
CFDA NO. AND PROJECT TITLE
11.300 PW & ED Facilities Assistance - Upgrade/relocate underground the Downtown Lubbock utilities and services
BUREAU
FUND
FCFY PROJECT -TASK ORGANIZATION I OBJECT CLASS
C i
This Award approved by the Grants Officer is issued in triplicate and constitutes an obligation of Federal
funding. By signing the three documents, the Recipient agrees to comply with the Award provisions checked
below and attached. Upon acceptance by the Recipient, two signed Award documents shall be returned to
the Grants Officer and the third document shall be retained by the Recipient. If not signed and returned
without modification by the Recipient within 30 days of receipt, the Grants Officer may unilaterally terminate
this Award.
❑ Department of Commerce Financial Assistance Standard Terms and Conditions
Special Award Conditions
Line Item Budget
❑ 15 CFR Part 14, Uniform Administrative Requirements for Grants and Agreements with Insitutions of Higher
Education, Hospitals, Other Nonprofit, and Commercial Organizations
15 CFR Part 24, Uniform Administrative Requirements for Grants and Agreements to State and Local
Governments
❑ OMB Circular A-21, Cost Principles for Educational Institutions
OMB Circular A-87, Cost Principles for State, Local, and Indian Tribal Governments
❑ OMB Circular A-122, Cost Principles for Nonprofit Organizations
❑ 48 CFR Part 31, Contract Cost Principles and Procedures
OMB Circular A-133, Audits of States, Local Governments, and Nonprofit Organizations
Other(s): EDA Standard Terms and Conditions for Construction Projects
(October 2007, as amended on December 13, 2007)
SIGNATURE OF DEPARTMENT OF COMMERCE GRANTS OFFICER
TITLE
DATE
MAY 2 8 2010
A& /
Pedro R. Garza, Regional Director
TYPED NAME AND SIGNATV OPFAUTHORIZED RECIPIENT OFFICIAL
TITLE
DATE
7j
Tom Martin, Mayor
June 24, 2010
ADMINISTRATION/IPSG ELECTRONIC FORM ATTEST'
DAk��
Rebecc Garza, City Secreta
Resolution No. 2010-RO298
U.S. DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
SPECIAL AWARD CONDITIONS
For Public Works and Development Facilities under the Public Works and Economic Development Act
(PWEDA) of 1965, as amended, this Award Number 08-01-04553 to the City of Lubbock, Texas
supports the work described in the Recipient's grant application dated August 18, 2009, which is
incorporated into this award by reference. Where the terms of this award and proposal differ, the terms of
this award shall prevail.
RECIPIENT/ADDRESS:
GRANT ADMIlVISTRATOR/ADDRESS:
AREA DIRECTOR/PHONE NUMBER:
PROJECT ENGINEER/PHONE NUMBER:
I. TOTAL AUTHORIZED BUDGET:
EDA Contribution
Non -Federal Contribution
Total Project Costs
City of Lubbock
1625 13th Street
Lubbock, Texas 79457
Pedro R. Garza
Regional Director
Austin Regional Office
U.S. Department of Commerce
Economic Development Administration
504 Lavaca Street, Suite 1100
Austin, Texas 78701-2858
Telephone (512) 381-8174
Sharon T. Frerking, Area Director
Telephone (512) 381-8176
Matt Giannini
Telephone (512) 381-8171
$1,500,000 ( 65.2%)
800,000 34.8%
$2,300,000 (100.0%)
Special Award Conditions Page 2
City of Lubbock, TX Project No. 08-01-04553
11. DETAILED BUDGET INVOLVING CONSTRUCTION
LINE ITEMS PROPOSED APPROVED
Admin. & Legal Expenses $ 44,000 $ 44,000
Land, Structures & ROW
Relocation Expenses & Payments
Architectural & Engineering Fees 150,000 150,000
Other Architectural & Engr. Fees
Project Inspection Fees 30,000 30,000
Site Work
Demolition and Removal 600,000 (1)
Construction 1,000,000 2,075,000 (1)
Equipment 891,000 (1)
Miscellaneous
SUBTOTAL
$2,715,000
$2,299,000
(2)
Contingencies
285,000
1,000
(3)
TOTAL PROJECT COSTS
$3,000,000
$2,300,000
(2)
Explanation of Changes:
(1) Combined the costs in the Demolition and Equipment line items with the costs in the Construction
line item and adjusted per the Applicant's recent engineering cost estimates.
(2) Revised total.
(3) Adjusted the costs in the Contingencies line item to keep the Total Project Costs within the funds
available.
Special Award Conditions
City of Lubbock, TX
III. ADDITIONAL TERMS:
Page 3
Project No. 08-01-04553
1. PROJECT DEVELOPMENT TIME SCHEDULE: The Recipient agrees to the following project
development time schedule:
Time allowed after approval of Financial Assistance Award for:
Return of executed Financial Assistance Award.................................................................... 30 days
Startof Construction...................................................................................................... 24 months
Construction period........................................................................................................... 36 months
Project closeout: All project closeout documents, including final financial information and any
required program reports, shall be submitted to the Government not more than 90 days after the date
the Recipient accepts the completed project from the contractor(s).
The Recipient shall pursue diligently the development of the project so as to ensure completion ofthe
project and submission of closeout documents within this time schedule. Moreover, the Recipient
shall notify the Government in writing of any event which could delay substantially the achievement
of the project within the prescribed time limits. The Recipient further acknowledges that failure to
meet the development time schedule may result in the Government's taking action to terminate the
award in accordance with the regulation set forth at 15 CFR 24.43 (53 Federal Re 'ster 8048-9, 8102,
March 11, 1988).
2. GOALS FOR WOMEN AND MINORITIES IN CONSTRUCTION: Department of Labor
regulations set forth in 41 CFR 60-4 establish goals and timetables for participation of minorities and
women in the construction industry. These regulations apply to all Federally assisted construction
contracts in excess of $10,000. The Recipient shall comply with these regulations and shall obtain
compliance with 41 CFR 60-4 from contractors and subcontractors employed in the completion of the
project by including such notices, clauses and provisions in the "Solicitations for Offers or Bids" as
required by 41 CFR 60-4. The goal for the participation of women in each trade area shall be as
follows:
From April 1, 1981, until further notice..... 6.9 percent
All changes to this goal, as published in the Federal Register in accordance with the Office of Federal
Contract Compliance Programs regulations at 41 CFR 60-4.6, or any successor regulations, shall
hereafter be incorporated by reference into these Special Award Conditions.
Goals for minority participation shall be as prescribed by Appendix B-80, Federal Register, Volume
45, No. 194, October 3, 1980, or subsequent publications. The Recipient shall include the "Standard
Federal Equal Employment Opportunity Construction Contract Specifications" (or cause them to be
included, if appropriate) in all Federally assisted contracts and subcontracts. The goals and timetables
for minority and female participation may not be less than those published pursuant to 41 CFR 60-4.6.
The minority participation goal for this project is 19.6 percent.
Special Award Conditions
City of Lubbock, TX
Page 4
Project No. 08-01-04553
3. FINANCIAL ASSISTANCE AWARD: This Financial Assistance Award, subject to the other
Special Award Conditions and the EDA Standard Terms and Conditions --Construction Program,
dated October 2007, as amended on December 12, 2007, shall constitute an obligation to make such
award. If the Recipient fails to affirm its intention to use the award in accordance with the terms and
conditions of this Financial Assistance Award, it will be terminated without further cause. By signing
and returning two of the three original Financial Assistance Award documents within 30 calendar
days from receipt, the Recipient hereby affirms that it intends to use the award in accordance with the
terms and conditions as above -referenced.
4. EVIDENCE OF GOOD TITLE: Prior to initial disbursement, the Recipient shall furnish evidence
satisfactory to the Government of a good and merchantable title, free of all mortgages or other
foreclosable liens, and/or equivalency of title to all land, rights-of-way and easements necessary for the
completion of the project, or of a long-term leasehold interest in accordance with 13 CFR 314, except
when a mortgage waiver has been granted by the Assistant Secretary or his/her designee.
5. ARCHITECT/ENGINEERING AGREEMENT: Prior to the initial disbursement of funds by EDA, the
Recipient shall submit to the Government for approval an Architect/Engineer agreement that meets the
requirements of Section I of the EDA publication, "Requirements for Approved Projects," as well as the
competitive procurement standards of Department of Commerce Regulations at 15 CFR 24 or 15 CFR
Part 14, as applicable. The fee for basic architect/engineer services shall be a lump sum or an agreed
maximum and no part of the fees for other services shall be based upon a cost -plus -a -percentage -of -cost
or a cost using a multiplier.
6. NON-FEDERAL SHARE: In affirming this Award, the Recipient certifies that the non -Federal share
of project costs is committed and is available as needed for the project, that the non -Federal share is
from sources which can be used as match for the EDA project, and that the non -Federal share will not
affect ownership of, or title to, the project facilities. The Recipient further acknowledges that, prior to
award of any construction contracts, it will be required to provide evidence satisfactory to the
Government that all funds necessary to complete the project are available. Any substitution of the non -
Federal share shall be submitted in writing and approved by EDA.
7. REPORT ON UNREIldBURSED OBLIGATIONS: All recipients of an EDA grant award of more
than $100,000 whose grant has not been fully disbursed as of the end of each reporting period are
required to submit a financial report to EDA annually on the status of unreimbursed obligations. The
report will provide information on the amount of allowable project expenses that have been incurred by
the Recipient but not claimed for reimbursement as of the end of the reporting period. The report will
be as of September 30 of each year and must be submitted annually until the final grant payment is
made to EDA. The report shall be submitted to EDA no later than October 30 of each year.
Noncompliance with this requirement may result in the suspension of EDA grant disbursements.
Standard Form SF -425 ("Federal Financial Report") or Standard Form 425A ("Federal Financial Report
Attachment" for reporting multiple grants), whichever is applicable, will be used for this purpose.
Special Award Conditions
City of Lubbock, TX
Page 5
Project No. 08-01-04553
DELAYED CONSTRUCTION START: If significant construction (as determined by EDA) is not
commenced within two years of approval of the project or by the date estimated for start of construction
in the grant award (or the expiration of any extension granted in writing by EDA), whichever is later,
the EDA grant will be automatically suspended and may be terminated if EDA determines, after
consultation with the grant recipient, that construction to completion cannot reasonably be expected to
proceed promptly and expeditiously.
9. GOVERNMENT PERFORMANCE AND RESULTS ACT OF 1993 (GPRA) REPORTING
REQUIREMENTS - PERFORMANCE MEASURES: The Recipient agrees to report on program
performance measures and program outcomes in such form and at such intervals as maybe prescribed
by EDA in compliance with the Government Performance and Results Act of 1993. Performance
measures and reporting requirements that apply to program activities funded by this investment will
be provided in a separate GPRA information collection document. EDA will advise Recipients in
writing within a reasonable period prior to the time of submission of the reports, and in the event that
there are any modifications in the performance measures.
10. PROHIBITION OF ATTORNEY'S OR CONSULTANT'S FEES: Grant funds must not be used
directly or indirectly to pay for attorney's or consultant's fees in connection with securing or obtaining
grants and contracts for projects funded under PWEDA.
11. REAFFIRMATION OF APPLICATION: The Recipient acknowledges that the Recipient's
application for this Award may have been submitted to the Government and signed by the Recipient,
or by an authorized representative of the Recipient, electronically. Regardless of the means by which
the Recipient submitted its application to the Government or whether the Recipient, or an authorized
representative of the Recipient, submitted its application to the Government, the Recipient hereby
reaffirms and states that:
a. all data in said application and documents submitted with the application are true and correct as of
the date of this Award and were true and correct as of the date of said submission,
b. said application was as of the date of this Award and as of the date of said application duly
authorized by local law by the governing body of the Recipient, and
c. The Recipient confirms that it will comply with the Assurances and Certifications submitted with
or attached to said application.
The term application includes all documentation and any information provided to the Government as
part of, and in furtherance to, the request for funding, including submissions made in response to
information requested by the Government after submission of the initial application.
12. PCBs REQUIREMENTS: Prior to advertisement ofbids, the Recipient shall provide evidence to the
Government that electrical transformers in the project area have been surveyed for PCBs
(Polychlorinated biphenyl) and those containing PCBs have been identified and properly disposed.
Special Award Conditions
City of Lubbock, TX
Page 6
Project No. 08-01-04553
13. SECURITY AGREEMENT - MACHINERY AND EQUIPMENT: The Recipient expressly agrees to
grant to the Government, prior to initial Award disbursement, security interest or other statement of
EDA's interest in the personal property purchased in whole or in part with any of the proceeds of this
Award. Such security interest or other statement must be acceptable in form and substance to EDA
and must be perfected and placed of record in accordance with local law, with continuances refiled as
appropriate. The Recipient also agrees that, subject to EDA's approval, the trade-in or selling of the
personal property originally acquired for the project in order to acquire replacement personal property
of equal or greater value to be used for the project is subject to the same requirements as the original
property.
14. NONRELOCATION: In signing this award of financial assistance, the Recipient attests that EDA
funding is not intended by the Recipient to assist its efforts to induce the relocation of existing jobs
that are located outside of its jurisdiction to within its jurisdiction in competition with other
jurisdictions for those same jobs. In the event that EDA determines that its assistance was used for
those purposes, EDA retains the right to pursue appropriate enforcement action in accord with the
Standard Terms and Conditions of the Award, including suspension of disbursements and termination
of the award for convenience or cause.
15. RECIPIENT'S DUTY TO REFRAIN FROM EMPLOYING CERTAIN GOVERNMENT
EMPLOYEES: For the two-year period beginning on the date the Government executes this award,
the Recipient agrees that it will not employ, offer any office or employment to, or retain for
professional services any person who, on the date the Government executes this award or within the
one-year period ending on that date:
(i) Served as an officer, attorney, agent, or employee of the Government; and
(ii) Occupied a position or engaged in activities that the Assistant Secretary determines involved
discretion with respect to the award of Investment Assistance under PWEDA.
The two-year period and associated restrictions referenced above also shall apply beginning on the
date the Government executes any cost amendment to this award that provides additional funds to the
Recipient.
16. LANGUAGE FOR SPECIAL AWARD CONDITION SUPERSEDING THE U.S. DEPARTMENT
OF COMMERCE STANDARD TERMS AND CONDITIONS, SECTION F (INDIVIDUAL
BACKGROUND SCREENINGS) — MARCH 2008: Notwithstanding the requirements pertaining to
Individual Background Screenings set forth in Section F of the Department of Commerce (DOC)
Standard Terms and Conditions (March 2008), Individual Background Screenings will be conducted
in accordance with the updated guidance contained in Chapter 21 (February 2010) of the DOC Grants
and Cooperative Agreements Interim Manual. This guidance may be viewed on line at
http:Hoamweb.osec.doc.gov/docs/RevisedChgpter2lO202lO.pdf. The individual background
screening can be initiated anytime during the course of the award administration process, including
after the Grants Officer's approval/signature of an award offer.
Resolution No. 2010—RO298
U.S. DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
STANDARD TERMS AND CONDITIONS
FOR CONSTRUCTION PROJECTS
Title II
Public Works and Economic Development Facilities
and
Economic Adjustment Assistance Construction Components
OCTOBER 2007
(as amended on December 13, 2007)
11. Prohibition on Use of Third Parties to Secure Award......................................................................12
12. Payment of Attorneys' or Consultants' Fees....................................................................................12
13. Commencement of Construction......................................................................................................12
14. Efficient Administration of Project..................................................................................................12
15. Conflicts -of -Interest Rules...............................................................................................................13
16. Record -Keeping Requirements........................................................................................................13
17. Termination Actions.........................................................................................................................14
18. Project Closeout Procedures.............................................................................................................14
D. Additional Requirements Relating to Construction Projects.................................................................16
1. The Davis -Bacon Act, as amended (40 U.S.C. §§ 3141-3144, 3146, 3147; 42 U.S.C. § 3212)......16
2. The Contract Work Hours and Safety Standards Act, as amended (40 U.S.C. §§ 3701 — 3708) ....16
3. The National Historic Preservation Act of 1966, as amended (16 U.S.C. § 470 et seq.),
and the Advisory Council on Historic Preservation Guidelines.......................................................16
4. The Historical and Archeological Data Preservation Act of 1974, as amended
(16 U.S.C. § 469a-1 et seq.).............................................................................................................16
5. Architectural Barriers Act of 1968, as amended (42 U.S.C. § 4151 et seq.)...................................16
6. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,
as amended (42 U.S.C. § 4601 et seq.).............................................................................................16
7. The Energy Conservation and Production Act (42 U.S.C. § 6834 et seq.)......................................16
8. Requirements for New Construction.................................................................................................17
E. Non -Discrimination Requirements.........................................................................................................17
1. Statutory Provisions.........................................................................................................................17
2. Other Provisions...............................................................................................................................17
3. Title VII Exemption for Religious Organizations............................................................................18
F. Audits.....................................................................................................................................................18
1. Requirement to Have an OMB Circular A-133 Audit Performed; Organization -Wide,
Program -Specific, and Project Audits..............................................................................................18
2. Requirement to Submit Audit to EDA.............................................................................................19
3. Audit Resolution Process.................................................................................................................19
G. Debts.......................................................................................................................................................20
1. Payment of Debts Owed the Federal Goveriunent...........................................................................20
2. Late Payment Charges......................................................................................................................20
3. Barring Delinquent Federal Debtors from Obtaining Federal Loans or
LoanInsurance Guarantees.............................................................................................................. 20
4. Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or Programs .............................21
H. Name Check Reviews............................................................................................................................21
1. Name Check Requirement................................................................................................................21
2. Exemptions....................................................................................................................................... 21
iii
9. The Flood Disaster Protection Act of 1973, as amended (42 U.S.C. § 4002 et seq.),
and regulations and guidelines issued thereunder by the U.S. Federal Emergency Management
Administration ("FEMA") or by EDA............................................................................................. 29
10. The Coastal Zone Management Act of 1972, as amended (16 U.S.C. § 1451 et seq.) ....................30
11. The Coastal Barrier Resources Act, as amended, (16 U.S.C. § 3501 et seq.)..................................30
12. The Wild and Scenic Rivers Act, as amended, (16 U.S.C. § 1271 et seq.)......................................30
13. The Fish and Wildlife Coordination Act, as amended, (16 U.S.C. § 661 et seq.) ...........................30
14. The Endangered Species Act of 1973, as amended, (16 U.S.C. § 1531 et seq................................30
15. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980
("CERCLA") (42 U.S.C. § 9601 et seq.), as amended by the Superfund Amendments
and Reauthorization Act of 1986 (42 U.S.C. § 9662 et seq.)...........................................................30
16. The Resource Conservation and Recovery Act of 1976, as amended, (42 U.S.C. § 6901 et seq.).. 30
17. Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority;
Populations and Low Incoine Populations" (59 Fed. Reg. 7629, February 11, 1994) ....................30
18. The Lead -Based Paint Poisoning Prevention Act, as amended, (42 U.S.C. § 4821 et seq.) ............30
19. The Farmland Protection Policy Act, as amended, (7 U.S.C. §§ 4201— 4209) ...............................30
20. The Noise Control Act of 1972, as amended, (42 U.S.C. § 4901 et seg.)........................................31
21. The Native American Graves Protection and Repatriation Act, as amended,
(25 U.S.C. § 3001 et seq.)................................................................................................................31
O. Compliance with Environmental Requirements.....................................................................................31
P. Miscellaneous Requirements..................................................................................................................31
1. Criminal and Prohibited Activities................................................................................................... 31
2. Foreign Travel..................................................................................................................................31
3. American -Made Equipment and Products.......................................................................................32
4. Intellectual Property Rights..............................................................................................................32
5. Increasing Seat Belt Use in the United States.................................................................................. 34
6. Research Involving Human Subjects...............................................................................................34
7. Federal Employee Expenses.............................................................................................................35
8. Preservation of Open Competition and Government Neutrality Towards Government
Contractors' Labor Relations on Federal and Federally -Funded Construction Projects..................35
9. Minority Serving Institutions ("MSIs") Initiative............................................................................ 35
10. Research Misconduct.......................................................................................................................35
11. Publications, Videos, and Acknowledgement of Sponsorship...........................................................36
12. Care and Use of Live Vertebrate Animals.......................................................................................36
13. Homeland Security Directive...........................................................................................................36
14. Compliance with Department of Commerce Bureau of Industry and Security Export
AdministrationRegulations..............................................................................................................37
APPENDIX..................................................................................................................................................38
v
ECONOMIC DEVELOPMENT ADMINISTRATION
STANDARD TERMS AND CONDITIONS
FOR CONSTRUCTION PROJECTS
Title II - Public Works and Economic Development Facilities
and
Title II - Economic Adjustment Construction Components
A. General Requirements and Responsibilities.
1. Purpose. The Economic Development Administration's ("EDA") grants for (i) public works
(42 U.S.C. § 3141) and (ii) economic adjustment (42 U.S.C. § 3149) projects are designed to
enhance regional competitiveness and promote long-term economic development in regions
experiencing substantial economic distress. EDA provides construction, design, and
engineering grants to assist distressed communities and regions revitalize, expand, and upgrade
their physical infrastructure to attract new industry, encourage business expansion, diversify
local economies, and generate or retain long-term private sector jobs and investment. The
requirements set forth in these construction standard terms and conditions (the "Construction
Standard Terms and Conditions") are applicable to construction, design, and engineering
projects funded in whole or in part by EDA. Any necessary modifications of these
requirements will be addressed in special award conditions to accommodate individual
projects. In addition, these Construction Standard Terms and Conditions apply to construction
projects of revolving loan funds ("RIFs") awarded between 1975 and 1999 under EDA's Title
IX Economic Adjustment Assistance Program, as well as to RLFs funded after February 11,
1999 under section 209 of PWEDA (42 U.S.C. § 3149).
2. Authority and Policies. EDA is a bureau within the U.S. Department of Commerce
established under the Public Works and Economic Development Act of 1965, as amended
(42 U.S.C. § 3121 et seq.) ("PWEDA"). (See also 13 C.F.R. § 300.1.) As a federal agency,
EDA is obligated to promulgate regulations and establish policies and procedures to:
a. Ensure compliance with applicable federal requirements;
b. Safeguard the public's interest in the grant assets; and
c. Promote the effective use of grant funds in accomplishing the purpose(s) for which they
were awarded.
The Department or EDA may issue changes from time to time to the regulations and other
requirements and policies that apply to this Award. Such changes may upon occasion increase
administrative or programmatic flexibility in administering this Award in a manner that is
mutually beneficial to EDA and to the Recipient. The implementation of any such regulatory,
administrative, or programmatic change in administering this Award must have prior EDA
written approval.
EDA's policy is to administer all Awards uniformly; however, there may be special
circumstances that warrant a variance. To accommodate these circumstances and to encourage
innovative and creative ways to address economic development problems, EDA will consider
requests for variances to the procedures set out in these Construction Standard Terms and
Conditions if they do not conflict with applicable federal statutory and regulatory requirements,
are consistent with the goals of EDA's programs, and make sound economic and financial
sense.
2
month for an Award totaling $1 million or more per year, or as otherwise specified in a
special award condition. See 15 C.F.R. §§ 14.52(a)(2) or 24.41(c), as applicable.
b. Any Recipient whose Award has not been fully disbursed is required to submit
Form SF -269, "Financial Status Report" to EDA semi-annually to report on the status of
unreimbursed obligations. This report will provide information on the amount of allowable
Project expenses that have been incuiTed, but not claimed for reimbursement by the
Recipient. The first report shall be as of March 30 of each year and shall be submitted to
EDA no later than April 30 of each year, and the second report shall be of September 30 of
each year and shall be submitted to EDA no later than October 30 of each year.
Instructions for completing and submitting Form SF -269 will be furnished to the Recipient
at least 60 days before the report is due.
c. The Recipient must submit a final financial report using Fonn SF -269 within 90 days of the
expiration date of the Award (or from the date the Recipient accepts the Project from the
contractor, whichever occurs earlier).
d. Noncompliance with these requirements will result in the suspension of disbursements
under this Award.
e. Financial reports are to be submitted to the Project Officer.
2. Disbursement Requests.
a. Method o%Paymennt. The Grants Officer determines the appropriate method of payment.
Unless otherwise specified in a special award condition, the method of payment under this
Award will be reimbursement. Payments will be made through electronic funds transfers
directly to the Recipient's bank account and in accordance with the requirements of the
Debt Collection Improvement Act of 1996 (31 U.S.C. § 3720B et seq.). The Award
number shall be included on all payment -related correspondence, information, and forms.
b. Disbursennent Requests. The Recipient shall use Form SF -271, "Outlay Report and
Request for Reinnbnasennelnt for Construction Programs," to request reimbursement under
the Award. Substantiating invoices and/or vouchers also must be provided. Each request
for the disbursement of funds shall be made to the Project Officer. Foran SF -271 can be
downloaded from OMB's website at www.whitehouse.pov/omb/grants/ rg ants forms.html.
c. Initial Disbursement Request. For the initial disbursement only, the Recipient must
complete and submit Form SF -3 881, "ACH Vendor /Miscellaneous Payment Enrollment
Form," along with Fonn SF -271, to the Project Officer.
d. Interim Disbursennent Requests. All requests for interim disbursement shall be submitted
using Form SF -271 and include substantiating invoices and/or vouchers.
3. Federal and Non -Federal Cost Sharing.
a. Awards that include the federal and non-federal share incorporate an estimated budget
consisting of shared allowable costs. If actual allowable costs are less than the total
approved estimated budget, the federal share and non-federal share, or "Matching Share,"
shall be calculated by applying the approved federal and non-federal cost share ratios to
M
unless the Grants Officer has provided prior written approval. In addition, this does not
prohibit the Recipient from requesting the Grants Officer's approval for revisions to the
budget. See 15 C.F.R. §§ 14.25(e) and (f) or 24.30(c), as applicable.
e. The Recipient is not authorized at any time to transfer amounts budgeted for direct costs to
the indirect costs line item or vice versa, without written prior approval of the Grants
Officer.
f. Project Underrun Amounts. Underrun amounts shall be transferred to the contingencies
line item. Contingency fluids are to be used to address situations resulting from unluiown
conditions and changes required for the fulfillment of authorized activities under this
Award. EDA may approve the use of underrun funds to increase the federal share of the
Project or further improve the Project, as long as the improvements are approved by EDA
and consistent with the original purpose of the approved EDA investment.
See 13 C.F.R. § 308.1.
g. Additional EDA Funding in Case of Project Overrun Amounts. In accepting the Award,
the Recipient agrees to fund any overrun amounts. Additional EDA assistance for an
approved Project may not be approved.
5. Indirect Costs.
a. Indirect costs are generally not applicable under this Award.
b. When indirect costs are applicable, they will not be allowable charges against the Award
unless specifically included as a line item in the EDA -approved budget. For Recipients
that are educational institutions, the term "indirect cost" has been replaced with the term
"facilities and administrative cost" under OMB Circular A-21, "Cost Principles for
Educational Institutions" (see 2 C.F.R. part 220).
c. Excess indirect costs may not be used to offset unallowable direct costs.
d. If the Recipient has not previously established an indirect cost rate with a federal agency,
the negotiation and approval of a rate is subject to the procedures in applicable cost
principles and the following subparagraphs:
(i) State, local, and Indian Tribal Governments; Educational Institutions; and Non -
Profit Organizations (Non -Commercial Organizations)
For the above -listed organizations, "cognizant federal agency" is generally defined as
the agency that provides the largest dollar amount of direct federal funding. For those
organizations for which DOC is cognizant or has oversight, DOC or its designee will
either negotiate a fixed rate with carry -forward provisions for the Recipient or, in
some instances, will limit its review to evaluating the procedures described in the
Recipient's cost allocation methodology plan. Indirect cost rates and cost allocation
metliodology reviews are subject to future audits to determine actual indirect costs.
(ii) Witliin 90 days of the Award start date, the Recipient shall submit to the address
listed below documentation (indirect cost proposal, cost allocation plan, etc.)
necessary to perform the review. The Recipient shall provide the Grants Officer with
a copy of the transmittal letter.
Col
date of acceptance of the Project by the contractor, whichever occurs earlier), unless a
written time extension of this Award is granted by the Grants Officer. The only costs that
are authorized for a period of up to 90 days following that date are those strictly associated
with Closeout activities. Closeout activities are generally limited to the preparation of final
reports. See 15 C.F.R. §§ 14.71 or 24.50, as applicable.
b. The Recipient shall adhere to the development time schedule and time limits set out in the
Terms and Conditions of this Award. Any such Term or Condition supersedes the
development time schedule and time limits set out in these Construction Standard Terms
and Conditions.
Time Extensions.
a. Unless otherwise authorized in 15 C.F.R. §§ 14.25(e)(2) or 24.30, as applicable, or a
special award condition, any extension of the Project period can only be authorized by the
Grants Officer in writing. A verbal or written assurance of funding from other than the
Grants Officer, including Regional Office staff other than the Grants Officer, does not
constitute authority to obligate funds for programmatic activities beyond the expiration
date.
b. The Recipient is responsible for implementing the Project in accordance with the
development time schedule contained in this Award. As soon as the Recipient becomes
aware that it will not be possible to meet the development time schedule, the Recipient
must notify the Grants Officer. The Recipient's notice to EDA must contain the following:
(i) An explanation of the Recipient's inability to complete work by the specified date
(e.g., a lengthy period of unusual weather delayed the contractor's ability to excavate
the site, major re-engineering required in order to obtain State or federal approvals,
unplanned environmental mitigation required);
(ii) A statement that no other changes to the Project are contemplated;
(iii) Documentation that demonstrates there is still a bona fide need for the Project; and
(iv) A statement that no further delay is anticipated and that the Project can be completed
within the revised time schedule.
EDA reserves the right to with) -told disbursements while the Recipient is not in compliance
with the time schedule. EDA reserves the right to suspend or terminate this Award if the
Recipient fails to proceed with reasonable diligence to accomplish the Project as intended.
c. EDA has no obligation to provide any additional prospective funding. Any amendment of
this Award to increase funding or to extend the period of performance is at the sole
discretion of EDA.
9. Tax Refunds. Refunds of Federal Insurance Contributions Act and Federal Unemployment
Tax Act ("FICA/FUTA") taxes received by the Recipient during or after the Project period
must be refunded or credited to DOC where the benefits were financed with federal funds
under the Award. The Recipient agrees to contact the Grants Officer immediately upon receipt
of these refunds. The Recipient further agrees to refund portions of FICA/FUTA taxes
determined to belong to the Federal Govermnent, including refunds received after the
expiration of this Award.
ability of the Recipient to attain Project objectives within established time periods or meet the
development time schedule. The Recipient should report such events to the Project Officer in
the most time -expedient way possible and then, if the initial report was not in writing, report
the event to the Project Officer in writing. Such a report shall include a statement of the event
or issue, a statement of the course of action contemplated to resolve the matter, and any federal
assistance needed to resolve the situation. If budget changes are required, the Recipient must
submit a written budget revision request. See 15 C.F.R. §§ 14.25(h) or 24.30(c)(2), as
applicable.
Government Performance and Results Act Reporting. In addition to quarterly performance
reports, EDA may require the Recipient to report on Project performance beyond the Project
Closeout date for Government Performance and Results Act (GPRA) purposes. In no case
shall the Recipient be required to submit any report more than ten years after the Project
Closeout date. Data used by the Recipient in preparing reports shall be accurate and from
independent sources whenever possible. See 13 C.F.R. § 302.16.
4. Unsatisfactory Performance. Failure to perform the work in accordance with the Terms and
Conditions of the Award and maintain at least satisfactory performance at the discretion of
EDA may result in the designation of the Recipient as high-risk and assignment of special
award conditions or further action as specified in section C.7. of these Construction Standard
Terms and Conditions. See 15 C.F.R. §§ 14.14 or 24.12, as applicable.
5. Programmatic Changes.
a. The Recipient must report to the Grants Officer, and request prior approval for any
programmatic change to the Award, in accordance with 15 C.F.R. §§ 14.25 or 24.30, as
applicable.
b. The Recipient must obtain the Grants Officer's written approval for any programmatic
changes to the Award. Any changes made to the Project without EDA's approval are made
at the Recipient's risk of nonpayment of costs, suspension, termination, or other EDA
action with respect to the Award. See 13 C.F.R. § 302.7(b).
c. Contract Change Orders. After construction contracts for the Project have been executed,
it may become necessary to alter them. This requires a formal contract change order that
must be issued by the Recipient and accepted by the contractor. All contract change orders
must be reviewed by EDA, even if EDA is not participating in the cost of the change order
or the contract price is to be reduced. Work on the Project may continue pending EDA
review and approval of the change order, but all such work shall be at the Recipient's risk
as to whether the cost of the work is eligible for EDA participation until the Recipient
receives EDA approval for the change order. See 13 C.F.R. § 305.13.
6. Other Federal Awards with Similar Programmatic Activities. The Recipient shall
inunediately provide written notification to the Project Officer and the Grants Officer in the
event that, subsequent to receipt of this Award, other financial assistance is received to support
or fund any portion of the scope of work incorporated into this Award. EDA will not pay for
costs that are funded by other sources.
7. Noncompliance with Award Provisions. Failure to comply with an), or all of the Terms and
Conditions of this Award may have a negative impact on the Recipient's ability to receive
10
11. Prohibition on Use of Third Parties to Secure Award. Unless otherwise specified in the
special award conditions to this Award, the Recipient warrants that no person or selling agency
has been employed or retained to solicit or secure this Award upon an agreement or
understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide
employees, or bona fide established commercial or selling agencies maintained by the
Recipient for the purpose of securing business. For breach or violation of this warrant, the
Government has the right to annul this Award without liability, or at its discretion, to deduct
from the Award sum, or otherwise recover, the full amount of such commission, percentage,
brokerage, or contingent fee.
12. Payment of Attorneys' or Consultants' Fees. No Award funds shall be used, directly or
indirectly, to reimburse attorneys' or consultants' fees incurred in connection with obtaining
investment assistance under PWEDA, such as, for example, preparing the application for EDA
investment assistance. However, ordinary and reasonable attorneys' and consultants' fees
incurred for meeting Award requirements, such as, for example, conducting a title search or
preparing plans and specifications, may be eligible Project costs and may be paid out of Award
funds, provided such costs are otherwise eligible. See 13 C.F.R. § 302.10.
13. Commencement of Construction.
a. Delayed Construction Starts. If significant construction (as determined by EDA) is not
commenced within two years of the Award date or by the date estimated for start of
construction in this Award (or the expiration of any extension granted in writing by EDA),
whichever is later, this Award will be automatically suspended and may be terminated if
EDA determines, after consultation with the Recipient, that construction to completion
cannot reasonably be expected to proceed promptly and expeditiously. If significant
construction has not been commenced within three years of the Award date, an extension
must be approved by the Assistant Secretary.
b. Early Construction Starts. The Recipient shall make a written request to EDA for early
construction start permission (that is, after the date of Award, but before EDA gives formal
approval for construction to commence). For Project costs to be eligible for EDA
reimbursement, EDA must determine that the award of all contracts necessary for design
and construction of the Project facilities is in compliance with the Terms and Conditions of
this Award. If construction commences prior to EDA's determination, the Recipient
proceeds at its own risk until EDA's review and concurrence. See 13 C.F.R. § 305.11.
c. Project Sign. The Recipient is responsible for constructing, erecting, and maintaining in
good condition throughout the construction period a sign (or signs) in a conspicuous place
at the Project site indicating that the Federal Government is participating in the Project.
EDA will provide specifications for the sign and may require more than one sign if site
conditions so warrant. If the EDA -recommended sign specifications conflict with State or
local law, the Recipient may modify such recommended specifications so as to comply
with State or local law. See 13 C.F.R. § 305.12.
14. Efficient Administration of Project. The Recipient agrees to properly and efficiently
administer, operate, and maintain the Project for its estimated useful life, as required by
section 504 of PWEDA (42 U.S.C. § 3194). If the Government determines, at any time during
the estimated useful life of the facility, that the Project is not being properly and efficiently
12
(i) If any litigation, claim, or audit is started before the expiration of the three-year
period, the records shall be retained until all litigation, claims, or audit findings
involving the records have been resolved and final actions taken.
(ii) Records for real property and equipment acquired with federal funds must be retained
for three years after final disposition.
(iii) When records are transferred or maintained by EDA, the three-year retention
requirement is not applicable to the Recipient.
Records relating to indirect cost rate computations or proposals, cost allocation plans, and
any similar accounting computations on the rate at which a particular group of costs is
chargeable are subject to different retention requirements. See 15 C.F.R. §§ 14.53 or 24.42,
as applicable.
The Recipient is responsible for monitoring any subrecipients and contractors to ensure
their compliance with the records retention requirements. The Recipient must immediately
notify the Project Officer in case records are not retained for the general retention periods
noted above. See 13 C.F.R. § 302.14 and 15 C.F.R. §§ 14.50-14.53 or §§ 24.40-24.42,
as applicable.
17. Termination Actions.
a. Termination for Cause. If the Recipient materially fails to comply with any of the Terms
and Conditions of this Award, EDA has the right to terminate for cause all or any part of its
obligation hereunder, including if:
(i) Any representation made by the Recipient to the Government in connection with the
application for Government assistance is incorrect or incomplete in any material
respect;
(ii) The intent and purpose and/or the economic feasibility of the Project is changed
substantially so as to affect significantly the accomplishment of the Project as
intended (including an unauthorized use of property as provided in 13 C.F.R § 314.4);
(iii) The Recipient has violated commitments it made in its application and supporting
documents or has violated any of the Terms and Conditions of this Award;
(iv) The conflicts -of -interest rules in 13 C.F.R. § 302.17 are violated; or
(v) The Recipient fails to report immediately to the Government any change of
authorized representative(s) acting in lieu of or on behalf of the Recipient.
In addition, EDA may take one or more of the actions set out in 15 C.F.R. §§ 14.62(a) or
24.43(a), as applicable.
b. Termination for Convenience. The Recipient may request at any time termination for
convenience of this Award upon sending to the Grants Officer written notification in a
form acceptable to EDA setting forth the reasons for requesting the termination and the
effective date of such termination. See 15 C.F.R. §§ 14.61 or 24.44, as applicable.
18. Project Closeout Procedures. After construction is completed and the Project is closed out
financially, the Recipient has an ongoing responsibility to properly administer, operate, and
maintain the Project for its estimated useful life (as determined by EDA) in accordance with its
original purpose. See 13 C.F.R. § 302.12. The Recipient must comply with all Award
14
(iv) Requirements for property management, records retention, and performance
measurement reports.
D. Additional Requirements Relating to Construction Projects.
The Recipient and any subrecipient(s) must, in addition to other statutory and regulatory
requirements detailed in these Construction Standard Terms and Conditions and the assurances made
to EDA in connection with the Award, comply and require each of its contractors and subcontractors
employed in the completion of the Project to comply with all applicable federal, State, territorial, and
local laws, and in particular, the following federal public laws (and the regulations issued
thereunder), Executive Orders, OMB Circulars, and local law requirements.
1. The Davis -Bacon Act, as amended (40 U.S.C. §§ 3141-3144, 3146, 3147; 42 U.S.C. § 3212)
Requiring minimum wages for mechanics and laborers employed on Federal Goveinment
public works projects to be based on the wages the Secretary of Labor determines to be
prevailing for the corresponding classes of laborers and mechanics employed on projects of a
character similar to the contract work in the civil subdivision of the State in which the Project
is to be performed, or in the District of Columbia if the Project is to be performed there.
2. The Contract Work Hours and Safety Standards Act, as amended
(40 U.S.C. §§ 3701— 3708)
Providing work hour standards for every laborer and mechanic employed by any contractor or
subcontractor in the performance of a federal public works project.
3. The National Historic Preservation Act of 1966, as amended (16 U.S.C. § 470 et seq.), and
the Advisory Council on Historic Preservation Guidelines
Requiring projects involving federal funds to follow the requirements of the National Historic
Preservation Act, which requires stewardship of historic properties.
4. The Historical and Archeological Data Preservation Act of 1974, as amended
(16 U.S.C. § 469a-1 et seq.)
Requiring appropriate surveys and preservation efforts if a federally -licensed project may
cause irreparable loss or destruction of significant scientific, prehistorical, historical, or
archeological data.
5. Architectural Barriers Act of 1968, as amended (42 U.S.C. § 4151 et seq.), and the
regulations issued thereunder, which prescribe standards for the design and construction of any
building or facility intended to be accessible to the public or that may house handicapped
employees.
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,
as amended (42 U.S.C. § 4601 et seq.), and implementing regulations issued at 49 C.F.R.
part 24, which establish uniform policies for the fair and equitable treatment of persons,
businesses, or farm operations affected by the acquisition, rehabilitation, or demolition of real
property acquired for a Project financed wholly or in part with federal financial assistance.
7. The Energy Conservation and Production Act (42 U.S.C. § 6834 et seq.)
Establishing energy efficiency performance standards for the construction of new residential
and commercial structures undertaken with federal financial assistance.
16
b. Executive Order 13166 (August 11, 2000), "Improving Access to Services for Pei sons N'ith
Limited English Proficiency," and DOC policy guidance issued on March 24, 2003
(68 Fed. Reg. 14180) to federal financial assistance Recipients on the Title VI prohibition
against national origin discrimination affecting Limited English Proficient ("LEP")
persons.
Title VII Exemption for Religious Organizations.
Generally, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), provides that
it shall be an unlawful employment practice for an employer to discharge any individual or
otherwise discriminate against an individual with respect to compensation, terms, conditions,
or privileges of employment because of such individual's race, color, religion, sex, or national
origin. However, Title VII, 42 U.S.C. § 2000e -1(a), expressly exempts from the prohibition
against discrimination on the basis of religion, a religious corporation, association, educational
institution, or society with respect to the employment of individuals of a particular religion to
perform work connected with the carrying on by such corporation, association, educational
institution, or society of its activities.
F. Audits.
Under the Inspector General Act of 1978, as amended (5 U.S.C. App. 3, § 1 et seq.), an audit of the
Award may be conducted at any time. The Department's Inspector General ("OIG"), or any of his
or her duly authorized representatives, shall have access to any pertinent books, documents, papers,
and records of the Recipient, whether written, printed, recorded, produced, or reproduced by any
electronic, mechanical, magnetic, or other process or medium, in order to make audits, inspections,
excerpts, transcripts, or other examinations as authorized by law. When the OIG requires a program
audit on a DOC Award, the OIG will usually snake the arrangements to audit the Award, whether the
audit is performed by OIG personnel, an independent accountant under contract with DOC, or any
other federal, State, or local audit entity.
Requirement to Have an OMB Circular A-133 Audit Performed; Organization -Wide,
Program -Specific, and Project Audits.
a. Organization -wide or program -specific audits shall be performed in accordance with the
Single Audit Act Amendments of 1996, as implemented by OMB Circular A-133, "Audits
of States, Local Governments, and Non -Profit Organizations," and the related "Compliance
Supplement." Recipients that expend federal awards of $500,000 or more in a fiscal year
shall have an audit conducted for that year in accordance with the requirements contained
in OMB Circular A-133. A copy of the audit shall be submitted to the Bureau of the
Census, which has been designated by OMB as a central clearinghouse. The address is:
Federal Audit Clearinghouse
1201 E. 10°i Street
Jeffersonville, IN 47132
b. In accordance with 15 C.F.R. § 14.26 (c) and (d), for-profit hospitals, commercial, and
other organizations not covered by the audit provisions of OMB Circular A-] 33 that
expend federal awards of $500,000 or more in a fiscal year, are required to have a program -
specific audit performed at the conclusion of the Project, but no less than once every five
years. Some DOC programs have specific audit guidelines that will be incorporated into
18
Appeal Determination Letter has been rendered, EDA will not accept any further
documentary evidence from the Recipient. No other administrative appeals are available in
the Department.
G. Debts.
Payment of Debts Owed the Federal Government.
Any debt determined to be owed to the Federal Government must be paid promptly by the
Recipient. In accordance with 15 C.F.R. § 21.4, a debt will be considered delinquent if it is not
paid within 15 days of the established due date or, if there is no due date, within 3 0 days of the
billing date. Failure to pay a debt by the due date or, if there is no due date, within 30 days of
the billing date, shall result in the imposition of late payment charges as noted below. In
addition, failure to pay the debt or establish a repayment agreement by the due date or, if there
is no due date, within 30 days of the billing date, will also result in the referral of the debt for
collection action, including referral to the Treasury Offset Program (31 C.F.R. § 285.5) and
may result in EDA taking further action as specified in section C.7. of these Construction
Standard Terms and Conditions. The Recipient also may be suspended or debarred from
further federal financial and non-financial assistance and benefits, as provided in 2 C.F.R.
part 1326, "Nonprocurement Debarment and Suspension" until the debt has been paid in full or
until a repayment agreement has been approved and payments are made in accordance with the
repayment agreement. Payment of a debt may not. come from other federally -sponsored
programs. Verification that other federal funds have not been used will be made during future
program visits and audits.
2. Late Payment Charges.
a. An interest charge shall be assessed on the delinquent debt as established by the Debt
Collection Act of 1982, as amended (31 U.S.C. § 3701 et seq.). The minimum annual
interest rate to be assessed is the U.S. Department of the Treasury's "Current Value of
Funds Rate" ("CVFR"). See www.fms.treas.pov/cvfr/index.html. The U.S. Department of
Treasury annually publishes the CVFR in the Federal Register. The assessed rate shall
remain fixed for the duration of the indebtedness.
b. A penalty charge will be assessed on any portion of a debt that is delinquent for more than
90 days, although the charge will accrue and be assessed from the date the debt became
delinquent.
c. An administrative charge will be assessed to cover processing and handling the amount
due.
3. Barring Delinquent Federal Debtors from Obtaining Federal Loans or Loan Insurance
Guarantees.
Pursuant to 31 U.S.C. § 372013, unless waived, the Department is not permitted to extend
financial assistance in the form of a loan, loan guaranty, or loan insurance to any person
delinquent on a non -tax debt owed to a federal agency. This prohibition does not apply to
disaster loans.
20
I. Governmentwide Debarment and Suspension (Non -procurement). The Recipient shall comply
with the provisions of subpart C of 2 C.F.R. part 1326, "Non -Procurement Debarment and
Suspension," which generally prohibit entities that have been debarred, suspended, or voluntarily
excluded from participating in federal non -procurement transactions either through primary or
lower -tier covered transactions.
Drug-free Workplace. The Recipient shall comply with the provisions of the Drug -Free Workplace
Act of 1988 (41 U.S.C. § 702), and the Department's implementing regulations found at
15 C.F.R. part 29, "Government -wide Requirements for Drug -Free YVorkplace (Financial
Assistance,)" which require that the Recipient take steps to provide a drug-free workplace.
K. Lobbying Restrictions.
Statutory Provisions. The Recipient must comply with the provisions of 31 U.S.C. § 1352
and the Department's implementing regulations published at 15 C.F.R. part 28,
"New Restrictions on Lobb)iing." These provisions generally prohibit the use of federal funds
for lobbying the executive or legislative branches of the United States government in
connection with the Award and require the disclosure of the use of non-federal funds for
lobbying.
2. Disclosure of Lobbying Activities. A Recipient receiving in excess of $100,000 in federal
funding must submit a completed Form SF -LLL, "Disclosure of Lobbying Activities,"
regarding the use of non-federal funds for lobbying. The Form SF -LLL must be submitted
within 30 days following the end of the calendar quarter in which there occurs any event that
requires disclosure or that materially affects the accuracy of the information contained in any
disclosure form previously filed. The Recipient must submit Form SF -LLL from all applicable
parties, including those received from subrecipients, contractors, and subcontractors, to the
Grants Officer.
3. Special Provisions Relating to Indian Tribes. As set out in 31 U.S.C. § 1352, there are
special provisions applicable to Indian Tribes, tribal organizations, or other Indian
organizations eligible to receive federal contracts, grants, loans, or cooperative agreements. In
accordance with Departmental policy, EDA recognizes Tribal Employment Rights Ordinances
("TEROs"), which may provide for preferences in contracting and employment, in connection
with its financial assistance awards. Tribal ordinances requiring preference in contracting,
hiring, firing, and the payment of a TERO fee generally are allowable provisions under federal
awards granted to American Indian and Alaska Native tribal governments. The payment of the
TERO fee, which supports the tribal employment rights office to administer the preferences,
should generally be allowable as an expense that is "necessary and reasonable for proper and
efficient performance and administration" of an Award, as provided under the applicable cost
principles set out in 2 C.F.R. pant 225.
L. Codes of Conduct and Subaward, Contract, and Subcontract Provisions.
1. Code of Conduct for Recipients. Pursuant to the certification in Form SF -42413, paragraph 3,
the Recipient must maintain written standards of conduct to establish safeguards to prohibit
employees from using their positions for a purpose that constitutes or presents the appearance
of personal or organizational conflicts -of -interest or personal gain in the administration of this
Award.
22
actions to be applied for violations of such standards by officers, employees, or agents of
the Recipient.
A financial interest may include employment, stock ownership, a creditor or debtor
relationship, or prospective employment with the organization selected or to be selected for
a subaward. An appearance of impairment of objectivity could result from an
organizational conflict where, because of other activities or relationships with other persons
or entities, a person is unable or potentially unable to render impartial assistance or advice.
It could also result from non-financial gain to the individual, such as benefit to reputation
or prestige in a professional field.
4. Applicability of Provisions to Subawards, Contracts, and Subcontracts.
a. The Recipient shall include the following notice in each request for applications or bids:
Applicants/bidders for a lower tier covered transaction (except procurement contracts for
goods and services under $25,000 not requiring the consent of a DOC official) are subject
to 2 C.F.R. part 1326, subpart C, "Governinentwide Debarment and Suspension
(Nonprocurement)." In addition, applicantsibidders for a lower tier covered transaction for
a subaward, contract, or subcontract greater than $100,000 of federal funds at any tier are
subject to 15 C.F.R. part 28, "New Restrictions on Lobbying." Applicants/bidders should
familiarize themselves with these provisions, including the certification requirement.
Therefore, applications for a lower tier covered transaction must include a Form CD -512,
"Certification Regarding Lobbying—Lower Tier Covered Transactions," completed without
modification.
b. The Recipient shall include a term or condition in all lower tier covered transactions
(subawards, contracts, and subcontracts), that the Award is subject to subpart C of
2 C.F.R. part 1326, "Governmentwide Debarment and Suspension (Nonprocurement)."
The Recipient shall include a statement in all lower tier covered transactions (subawards,
contracts, and subcontracts) exceeding $100,000 in federal funds, that the subaward,
contract, or subcontract is subject to 31 U.S.0 § 1352, as implemented at 15 C.F.R. part 28,
regarding new restrictions on lobbying. The Recipient shall further require the
subrecipient, contractor, or subcontractor to submit a completed Form SF -LLL,
"Disclosure of Lobbying Activities," regarding the use of non-federal funds for lobbying.
The Form SF -LLL shall be submitted within 15 days following the end of the calendar
quarter in which there occurs any event that requires disclosure or that materially affects
the accuracy of the information contained in any disclosure form previously filed. The
Form SF -LLL shall be submitted from tier to tier until received by the Recipient. The
Recipient must submit all disclosure forms received, including those that report lobbying
activity on its own behalf, to the Grants Officer within 30 days following the end of the
calendar quarter.
5. Minority -Owned Business Enterprise. DOC encourages Recipients to utilize minority- and
women -owned firms and enterprises in contracts under financial assistance awards. The
Minority Business Development Agency will assist Recipients in matching qualified minority
owned enterprises with contract opportunities. For further information contact:
M
and as provided in 13 C.F.R. § 314.7(c)) is vested in the Recipient and that such
easements, rights-of-way, State or local government permits, long-term leases, or other
items required for the Project have been or will be obtained by the Recipient within an
acceptable time, as determined by the Government. All liens, mortgages, other
encumbrances, reservations, reversionary interests, or other restrictions on title or the
Recipient's interest in the property must be disclosed to EDA. With limited exceptions set
forth in 13 C.F.R. § 314.6(b) or as otherwise authorized by EDA, Recipient -owned
property acquired or improved in whole or in part with EDA investment assistance must
not be used to secure a mortgage or deed of trust or in any way otherwise encumbered.
See 13 C.F.R. § 314.6.
b. Recording EDA 's Interest in Property.
(i) For all Projects involving the acquisition, construction, or improvement of a
building, as determined by EDA, the Recipient shall execute and furnish to the
Government, prior to initial Award disbursement, a lien, covenant, or other
statement, satisfactory to EDA in form and substance, of EDA's interest in the
property acquired or improved in whole or in part with the funds made available
under this Award. EDA may require such statement after initial Award
disbursement in the event that grant funds are being used to acquire such property.
The statement must specify the estimated useful life of the Project and shall include
but not be limited to the disposition, encumbrance, and the Federal Share
compensation requirements. See 13 C.F.R. §§ 314.1 and 314.8(a).
(ii) This lien, covenant, or other statement of the Government's interest must be
perfected and placed of record in the real property records of the jurisdiction in
which the property is located, all in accordance with applicable law. EDA shall
require an opinion of counsel for the Recipient to substantiate that the document has
been properly recorded. See 13 C.F.R. § 314.8(b).
(iii) Facilities in which the EDA investment is only a small part of a larger project, as
determined by EDA, may be exempted from the requirements listed in paragraphs
M.3.b.(i) and (ii) above. See 13 C.F.R. § 314.8(c).
c. The Recipient acknowledges that the Government retains an undivided equitable
reversionary interest in the property acquired or improved in whole or in part with grant
funds made available through this Award throughout the estimated useful life (as
determined by EDA) of the Project, except in applicable instances set forth in 13 C.F.R.
§ 314.7(c). See also 13 C.F.R. § 314.2(a).
d. The Recipient agrees that in the event that any interest in property acquired or unproved in
whole or in part with EDA investment assistance is disposed of, encumbered or alienated
in any manner, or no longer used for the authorized purpose(s) of the Award during the
Project's estimated useful life without FDA's written approval, the Government will be
entitled to recover the Federal Share, as defined at 13 C.F.R. § 314.5. If, during the
Project's estimated useful life, the property is no longer needed for the purpose(s) of the
Award, as determined by EDA, EDA may permit its use for other- acceptable purposes
consistent with those authorized by PWEDA and 13 C.F.R. chapter III.
See 13 C.F.R. § 314.3(b).
26
a. Not to use any power of eminent domain available to the Recipient (including the
commencement of eminent domain proceedings) for use in connection with the Project for
the purpose of advancing the economic interests of private parties; and
b. Not to accept title to land, easements, or other interests in land acquired by the use of any
power of eminent domain for use in connection with the Project for such purposes.
The Recipient agrees that any use of the power of eminent domain to acquire land, easements,
or interests in land, whether by the Recipient or any other entity that has the power of eminent
domain, in connection with the Project without prior written consent of EDA is an
unauthorized use of the Project. If the Recipient puts the Project to an unauthorized use, the
Recipient shall compensate EDA for its fair share in accordance with 13 C.F.R. §§ 314.4 and
314.5, as same may be amended from time to time.
7. Disposal of Real Property.
a. If EDA and the Recipient determine that property acquired or improved in whole or in part
with EDA investment assistance is no longer needed for the original purpose(s) of this
Award, the Recipient must obtain approval from the Government to use the property in
other federal grant programs or in programs that have purposes consistent with those
authorized by PWEDA and 13 C.F.R. chapter III. See 13 C.F.R. § 314.3(b).
b. When property is not disposed of as provided in section M.7.a. above, the Government
shall determine final disposition and must be compensated by the Recipient for the Federal
Share of the value of the property, plus costs and interest, as provided in 13 C.F.R.
§ 314.4.
N. Environmental Requirements.
Environmental impacts must be considered by federal decision -makers in their decisions whether or
not to: (i) approve a proposal for federal assistance; (ii) approve the proposal with mitigation; or
(iii) approve a different proposal/grant having less adverse environmental impacts. Federal
environmental laws require that the funding agency initiate a planning process with early
consideration of potential environmental impacts that Project(s) funded with federal assistance may
have on the environment. The Recipient and any subrecipients shall comply with all environmental
standards, to include those prescribed under the following statutes and Executive Orders, and shall
identify to the awarding agency any impact the Award may have on the environment. In some
cases, the Grants Officer can withhold Award funds under a special award condition requiring the
Recipient to submit additional environmental compliance information sufficient to enable the
Department to make an assessment on any impacts that a Project may have on the environment.
The National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.)
The National Environmental Policy Act ("NEPA") and the Council on Environmental Quality
("CEQ") implementing regulations (40 C.F.R. parts 1500 —1508) require that an
environmental analysis be completed for all major federal actions significantly affecting the
environment. NEPA applies to the actions of federal agencies and may include a federal
agency's decision to fund non-federal projects under grants and cooperative agreements.
Recipients of federal assistance are required to identify to the awarding agency any impact an
award will have on the quality of the human environment and assist the agency to comply
with NEPA. Recipients may also be requested to assist EDA in drafting an envirornmental
28
10. The Coastal Zone Management Act of 1972, as amended (16 U.S.C. § 1451 et seq.)
Funded projects must be consistent with a coastal State's approved management plan for the
coastal zone.
11. The Coastal Barrier Resources Act, as amended, (16 U.S.C. § 3501 et seq.)
Restrictions are placed on federal funding for actions within a Coastal Barrier System.
12. The Wild and Scenic Rivers Act, as amended, (16 U.S.C. § 1271 et seq.)
This Act applies to awards that may affect existing or proposed components of the National
Wild and Scenic Rivers system.
13. The Fish and Wildlife Coordination Act, as amended, (16 U.S.C. § 661 et seq.)
Requiring the evaluation the impacts to fish and wildlife from federally -assisted proposed
water resource development projects.
14. The Endangered Species Act of 1973, as amended, (16 U.S.C. § 1531 et seq.)
The Recipient must identify any impact or activities that may involve a threatened or
endangered species. Federal agencies have the responsibility to ensure that federal awards do
not adversely affect protected species or habitats and must conduct the required reviews under
the Endangered Species Act.
15. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980
("CERCLA") (42 U.S.C. § 9601 et seq.), as amended by the Superfund Amendments and
Reauthorization Act of 1986 (42 U.S.C. § 9662 et seq.)
These requirements address responsibilities of hazardous substance releases, threatened
releases, and environmental cleanup. There is also a requirement to impose reporting and
community involvement requirements to ensure disclosure of the release or disposal of
regulated substances and cleanup of hazards.
16. The Resource Conservation and Recovery Act of 1976, as amended,
(42 U.S.C. § 6901 et seq.)
This Act regulates the generation, transportation, treatment, and disposal of hazardous wastes,
and also provides that Recipients of federal funds give preference in their procurement
programs to the purchase of recycled products pursuant to EPA guidelines.
17. Executive Order 12898, "Federal Actions to Address Environmental Justice in Minority
Populations and Low -Income Populations" (59 Fed. Reg. 7629, February 11, 1994)
This Order identifies and addresses adverse human health or environmental effects of
programs, policies, and activities on low-income and minority populations.
18. The Lead -Based Paint Poisoning Prevention Act, as amended, (42 U.S.C. § 4821 et seq.)
Use of lead-based paint in residential structures constructed or rehabilitated by the Federal
Government or with federal assistance is prohibited.
19. The Farmland Protection Policy Act, as amended, (7 U.S.C. §§ 4201 — 4209)
Projects are subject to review under this Act if they may irreversibly directly or indirectly
convert farmland, including forest land, pastureland, cropland, or other land, to
nonagricultural use.
30
b. The Fly America Act requires that federal travelers and others performing federal
government -financed foreign air travel must use United States flag air carriers, to the
extent that service by such carriers is available. Foreign air carriers may be used only in
specific instances, such as when a United States flag air carrier is unavailable, or use of
United States flag air carrier service will not accomplish the agency's mission.
c. Use of foreign air carriers may also be used only if bilateral agreements permit such travel
pursuant to 49 U.S.C. § 40118(b). The Department is not aware of any bilateral
agreements that meet these requirements. Therefore, it is the responsibility of the
Recipient to provide the Grants Officer with a copy of the applicable bilateral agreement if
use of a foreign carrier under a bilateral agreement is anticipated.
d. If a foreign air carrier is anticipated to be used, the Recipient must receive prior approval
from the Grants Officer. When requesting such approval in accordance with the guidance
provided by 41 C.F.R. § 301-10.142, the Recipient must provide a "certification" the
Grants Officer with the following: (i) his or her name; (ii) dates of travel; (iii) the origin
and destination of travel; (iv) a detailed itinerary of travel; (v) the name of the air carrier
and flight number for each leg of the trip; (vi) and a statement explaining why the
Recipient meets one of the exceptions to the applicable regulations. If the use of a foreign
air carrier is pursuant to a bilateral agreement, the Recipient must provide the Grants
Officer with a copy of the agreement. The Grants Officer shall make the final
determination and notify the Recipient in writing. Failure to adhere to the provisions of
the Fly America Act will result in the Recipient not being reimbursed for any
transportation costs for which the Recipient improperly used a foreign air carrier.
3. American -Made Equipment and Products. Recipients are hereby notified that they are
encouraged, to the greatest extent practicable, to purchase American-made equipment and
products with funding provided under this Award.
4. Intellectual Property Rights.
a. Inventions. The intellectual property rights to any invention made by a Recipient under a
DOC Award are determined by the Bayh-Dole Act, as amended (Pub. L. No. 96-517), and
codified in 35 U.S.C. § 200 et seq., except as otherwise required by law. The specific
rights and responsibilities are described in more detail in 37 C.F.R. part 401, and in the
particular, in the standard patent rights clause in 37 C.F.R. § 401.14, which is hereby
incorporated by reference into this Award.
(i) Ownership.
(a) Recipient. The Recipient has the right to own any invention it makes
(conceived or first reduced to practice) or that is made by its employees. The
Recipient may not assign its rights to a third party without the permission of
the Department unless it is to a patent management organization (i.e., a
university's research foundation.) The Recipient's ownership rights are subject
to the Federal Goverrurrent's nonexclusive paid-up license and other rights.
(b) Department. If the Recipient elects not to own or does not elect rights or file a
patent application within the time limits set forth in the standard patent rights
clause, the Department may request an assigrunent of all rights, which is
32
d. Copyriglit. The Recipient may copyright any work produced under a DOC Award
subject to the Department's royalty -free, non-exclusive, and irrevocable right to
reproduce, publish or otherwise use the work or authorize others to do so for Federal
Government purposes. Works jointly authored by the Department and Recipient
employees may be copyrighted, but only the part authored by the Recipient is protected
under 17 U.S.C. § 105, which provides that works produced by Federal Government
employees are not copyrightable in the United States. If the contributions of the authors
cannot be separated, the copyright status of the joint work is questionable. On occasion,
the Department may ask the Recipient to transfer to the Department its copyright in a
particular work when the Department is undertaking the primary dissemination of the
work. Ownership of copyright by the Federal Government through assignment is
permitted under 17 U.S.C. § 105.
5. Increasing Seat Belt Use in the United States. Pursuant to Executive Order 13043,
Recipients should encourage employees and contractors to enforce on-the-job seat belt
policies and programs when operating company-owned, rented, or personally -owned vehicles.
6. Research Involving Human Subjects.
a. All proposed research involving human subjects must be conducted in accordance with
15 C.F.R. part 27, "Protection of Human Subjects." No research involving human
subjects is permitted under this Award unless expressly authorized by special award
condition or otherwise authorized in writing by the Grants Officer.
b. Federal policy defines a human subject as a living individual about whom an investigator
conducting research obtains (i) data through intervention or interaction with the
individual, or (ii) identifiable private information. Research means a systematic
investigation, including research development, testing and evaluation, designed to develop
or contribute to generalizable knowledge.
c. The Department's regulations at 15 C.F.R. part 27 require that Recipients maintain
appropriate policies and procedures for the protection of human subjects. In the event it
becomes evident that human subjects may be involved in carrying out the purpose(s) of
this Award, the Recipient shall submit appropriate documentation to the Project Officer
for approval. This documentation may include:
(i) Documentation establishing approval of the Project by an institutional review board
("IRB") approved for goverrunent-wide use under Department of Health and Human
Services guidelines (see 15 C.F.R. § 27.103);
(ii) Documentation to support an exemption for the Project under 15 C.F.R. § 27.101(b);
(iii) Documentation to support deferral for an exemption or IRB review under 15 C.F.R.
§ 27.118; or
(iv) Documentation of IRB approval of any modification to a prior approved protocol or
to an informed consent form.
d. No work involving human subjects may be undertaken, conducted, or costs incurred or
charged for human subjects research until the appropriate documentation is approved in
34
2000 a final policy that addressed research misconduct (65 Fed. Reg. 76260). The policy was
developed by the National Science and Technology Council. The Department requires that
any allegation be submitted to the Grants Officer, who also will notify the OIG of such
allegation. Generally, the Recipient organization shall investigate the allegation and submit
its findings to the Grants Officer. The Department may accept the Recipient's findings or
proceed with its own investigation. The Grants Officer shall inform the Recipient of the
Department's final determination.
11. Publications, Videos, and Acknowledgment of Sponsorship. Publication of the results or
findings of a research Project in appropriate professional journals and production of video or
other media is encouraged as an important method of recording and reporting scientific
information. It is also a constructive means to expand access to federally -funded research.
The Recipient is required to submit a copy to the funding agency and when releasing
information related to a funded Project include a statement that the Project or effort
undertaken was or is sponsored by DOC. The Recipient also is responsible for ensuring that
every publication of material (including Internet sites and videos) based on or developed
under an Award, except scientific articles or papers appearing in scientific, technical or
professional journals, contains the following disclaimer: "This [report/video] was prepared by
[Recipient name] under [Award number] from [name of operating unit], U.S. Department of
Commerce. The statements, findings, conclusions and recommendations are those of the
author(s) and do not necessarily reflect the views of the [name of operating unit] or the U.S.
Department of Commerce." This disclaimer also applies to videos produced under DOC
Awards.
12. Care and Use of Live Vertebrate Animals. Recipients must comply with the Laboratory
Animal Welfare Act of 1966 (Pub. L. No. 89-544), as amended (7 U.S.C. § 2131 et seq.)
(animal acquisition, transport, care, handling, and use in projects), and the implementing
regulations at 9 C.F.R. parts 1, 2, and 3; the Endangered Species Act (16 U.S.C.
§ 1531 et seg.); the Marine Mammal Protection Act (16 U.S.C. § 1361 et seg.) (taking
possession, transport, purchase, sale, export or import of wildlife and plants); the
Non -indigenous Aquatic Nuisance Prevention and Control Act (16 U.S.C. § 4701 et seq.)
(ensure preventive measures are taken or that probable harm of using species is minimal if
there is an escape or release); and all other applicable statutes pertaining to the care, handling,
and treatment of warm blooded animals held for research, teaching, or other activities
supported by federal financial assistance. No research involving vertebrate animals is
permitted under any DOC Award unless authorized by the Grants Officer.
13. Homeland Security Directive. If the performance of this Award requires the Recipient to
have physical access to federal premises for more than 180 days or access to a federal
information system, personal identity verification procedures must be implemented. Any
items or services delivered under this Award shall comply with the Department's personal
identity verification procedures that implement Homeland Security Presidential
Directive — 12, FIPS PUB 201, and OMB Memorandum M-05-24. The Recipient shall insert
this clause in all subawards or contracts when the subaward recipient or contractor is required
to have physical access to a federally -controlled facility or access to a federal information
system.
36
EDA FORMS:
1. Form CD -281, "Report of Government Propert3) in Possession of Contractor"
2. Form CD -451, "Amendment to Financial Assistance Award"
3. Form CD -346, "Identification - Applicant for Funding Assistance"
4. Form SF -269, "Financial Status Report"
5. Form SF -270, "Request for Advance or Reimbursement" (with Instructions)
6. Form SF -271, "Outlay Report and Request for Reimbursement for Construction Programs"
7. Form SF -272, "Federal Cash Transaction Report"
8. Form SF -LLL, "Disclosure of Lobbying Activities"
To access Department of Cornrnerce forms ("CD'), visit the Department's Internet website at
hrtn-//nein alz dnr vnv/ITPnlicv-ndPrnarmn.c/Flectrronic Forms/index.htm.
To access the Standard Forms ("SF'), visit the General Services Administration's Internet website at
wwrv.Psa. Dov/Por tal/sale p/for•mslibr ary.do?for-mType=SF.
39
OW OF
UNITED STATES DEPARTMENT OF COMMERCE
Economic Development Administration
s - 504 Lavaca, Suite 1100
MAY 2 8 2010Austin, Texas 78701-2858
In reply refer to:
Award No.: 08-01-04553
The Honorable Tom Martin
Mayor of Lubbock
1625 13th Street
Lubbock, Texas 79457
1
LAMAVOR-S
ICE
Dear Mayor Martin:
I am pleased to inform you that the Department of Commerce's Economic Development
Administration (EDA) has approved your grant application for a $1,500,000 EDA investment to
upgrade and relocate underground the downtown Lubbock utilities and services to help revitalize
downtown Lubbock.
Enclosed are three signed copies of the Financial Assistance Award. Your agreement
to the terms and conditions of the award should be indicated by the signature of your principal
official on each of the signed copies of the Financial Assistance Award. Two of the executed
copies should be returned to Mr. Pedro R. Garza, Regional Director, Austin Regional Office,
Economic Development Administration, 504 Lavaca Street, Suite 1100, Austin, Texas 78701-
2858. If not signed and returned within 30 days of receipt, the Grants Officer may declare the
Award null and void.
Please do not make any commitments in reliance r lward until you have carefully
reviewed and accepted the terms and conditions is entered into prior to
obtaining the approval of the Government ' ,ulations and requirements
will be at your own risk. P P4"A ,
EDA's mission is to lead the fec ends by promoting
innovation and competitiveness, prepari, and success in the
N
worldwide economy. EDA implements t. ..Legic investments in the
nation's most economically distressed con ourage private sector collaboration
and creation of higher -skill, higher wage jo, . investments are results driven, embracing
the principles of technological innovation, eiArepreneurship and regional development.
I share your expectations regarding the impact of this investment and look forward to
working with you to meet the economic development needs of your community.
Sincerely,
Zl��arza
Regional Director
Enclosures